IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120006038 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* removal of the last charge on the continuation sheet of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his records
* addition of the DA Form 2823 (Sworn statement), dated 27 March 2009, from Captain (CPT) M____ A. B____ that proved the above charge was untrue

2.  The applicant states:

* he received an Article 15 on 27 March 2009 for various infractions
* the imposing officer, Major General (MG) W____ B. G____, found him not guilty of the charge of making a false official statement on 13 March 2009 as listed on the continuation sheet to the DA Form 2627
* the sworn statement completed by CPT M____ A. B____ that proved the aforementioned charge was untrue is not filed in his records and needs to be added
* MG W____ B. G____ stated he would remove the final charge on the continuation sheet from the record due to the lack of evidence but this was not done
* when he went through his records for his current job at the State Department, the investigator received his file with the untrue information
* he had to defend himself against this charge without the benefit of the sworn statement by CPT M____ A. B____  that proved the charge was untrue
* the Article 15 filed in his records does not contain a "slash mark" through it, thus giving the appearance that it is true
* this particular charge is slanderous and was found untrue

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2627

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed as a Regular Army commissioned officer and entered active duty on 23 June 2005.  He served in a variety of assignments and he was promoted to CPT on 30 January 2009.

2.  On 24 March 2009, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for:

* dereliction of duties on 1 October 2008
* failing to go at the time prescribed to his appointed place of duty on 20 November 2008
* failing to go at the time prescribed to his appointed place of duty on 30 January 2009
* failing to go at the time prescribed to his appointed place of duty on 17 February 2009
* willfully disobeying a lawful order on 25 February 2009
* dereliction of duties on 25 February 2009
* dereliction of duties on 10 March 2009
* dereliction of duties on 13 March 2009
* making a false official statement on 13 March 2009

3.  Each charge listed on the record copy of the DA Form 2627 as well as the continuation sheet contains the letter "G" (guilty) next to it with the exception of the last charge (making a false official statement); it contains the letters "NG" (not guilty) next to it.

4.  His punishment consisted of a forfeiture of $2,361.00 pay per month for 2 months and a reprimand.

5.  The imposing officer, MG W____ B. G____, Commanding General, U.S. Army Southern European Task Force, Italy, directed filing the original DA Form 2627 in the performance section of the applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

6.  The reprimand he received in connection with this Article 15 from MG W____ B. G____ cited his professional incompetence, indolence, and reprehensible leadership.

7.  The DA Form 2627 with the letters "G" and "NG" together with the GOMOR are filed in the performance section of his AMHRR.  Additionally, all allied documents, including the DA Form 2823, dated 27 March 2009, are filed in the restricted section of the AMHRR.

8.  He was discharged on 12 July 2009.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.

	a.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's AMHRR is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the AMHRR.  The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.

10.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three sections:  performance, service, or restricted.  Table 2-1 shows the DA Form 2627 is filed in either the performance or restricted section of the AMHRR as directed in item 5 of the DA Form 2627.

11.  Paragraph 2-3 of Army Regulation 600-8-104 provides that the restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent.  This paragraph also provides that documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  There are two main issues in this case, the not-guilty charge and the sworn statement.

2.  The applicant accepted NJP under Article 15 for various violations of the UCMJ.  When considering all matters presented in defense and mitigation, the imposing officer found the applicant guilty of all charges except the charge of making a false official statement, listed as the last charge on the continuation sheet.

	a.  The regulation is silent with respect to how to annotate a finding of not guilty.  Generally, a line is drawn through the charge and the imposing officer places his or her initials by the line through.  Periodically, however, the letters "G" or "NG" are placed next to the charge to indicate "guilty" or "not guilty" of a specific charge.

	b.  In the applicant's case, the imposing officer placed "NG" next to the contested charge.  It is a clear indication that he was found not guilty.  However, as a matter of clarity, there is no harm to the Army or the Soldier if a line is further drawn through this charge to satisfy the applicant's desire.

3.  The sworn statements considered by the imposing officer when administering the NJP are allied documents and are filed in the restricted section of the AMHRR.  This is the case here.  The sworn statement by CPT M____ A. B____ is properly filed in the restricted section of the applicant's AMHRR.  There is no need to add another copy.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by drawing a line through the last charge on the continuation sheet of the applicant's DA Form 2627, dated 27 March 2009.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adding the DA Form 2823, dated 27 March 2009, to the applicant's AMHRR, filed with the DA Form 2627.



      _____________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120006038



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ABCMR Record of Proceedings (cont)                                         AR20120006038



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