IN THE CASE OF:	  

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20120017848 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  removal from the applicant's Army Military Human Resource Record (AMHRR) a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)) dated 20 July 2011 and a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 December 2010 through 20 July 2011.

	b.  Reimbursement of the applicant's forfeiture of pay in the amount of $1,000.00.

	c.  Termination of the applicant's involuntary retirement.

	d.  In the alternative, reversal of the involuntary retirement under the Qualitative Management Program (QMP) until this issue can be adjudicated and resolved.

2.  Counsel states:

	a.  On 15 July 2011, a lieutenant colonel outside of the applicant's chain of command administered nonjudicial punishment (NJP) against him under the UCMJ, for falsely stating that his son would graduate high school in 2012 in order to obtain a curtailment of permanent change of station (PCS) orders.

	b.  As a direct result of his NJP the applicant was being involuntarily discharged from the Army not later than 1 October 2012.

	c.  The applicant filed a request for redress under Article 138, UCMJ; however, his request was never addressed.

	d.  The applicant filed an appeal to the QMP Selection Board's denial of continued active duty service and his appeal was denied.

	e.  The applicant filed a petition for removal of unfavorable information with the Department of the Army Suitability Evaluation Board.

	f.  As of 31 July 2012, the applicant's son graduated from DeRidder High School, which directly refutes the NJP for which he was facing involuntary discharge.

	g.  Because the unfavorable information is 100 percent false, the Board should remove such information, including the NJP and the complete NCOER from his record.

3.  Counsel provides the evidence listed as enclosures in his letter to the Army Review Boards Agency, dated 13 September 2012.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, on 5 January 1989, in the pay grade of E-1.  He was promoted through the ranks to sergeant first class (E-7).

2.  On 20 July 2011, the applicant accepted NJP for, with intent to deceive, making a false official statement to a brigadier general and a lieutenant colonel (O-5) in order to obtain a curtailment of PCS orders.  The referenced DA Form 2627 shows the applicant stated his son would graduate high school in 2012 and that statement was known by him to be false.  His punishment consisted of a forfeiture of $1,000.00 pay.  The applicant elected not to demand trial by court-martial.  He requested a closed hearing with matters in defense, mitigation, and/or consideration to be presented in person.  

3.  On 21 July 2011, the applicant's rater received an email from the School Liaison Officer stating the applicant's son would be in the 11th grade when school started for the 2011/2012 school year.
4.  On 29 July 2011, the applicant submitted a request for redress of the NJP he received.  In his request he stated he had not been afforded an opportunity to adequately appeal his NJP to the U.S. European Command Chief of Staff (CoS). He stated he attempted to arrange his appeal through the command sergeant major who informed him that once he received the appeal packet he would deliver it to the CoS and inform him that he wanted to appeal in person.  The applicant stated that the command sergeant major had instead ensured that he and his family had flight arrangements to leave Germany.  The applicant stated he believed the Headquarters, Commandant's office refusal to facilitate his request for an appeal to the CoS was a willful intent to harm his career and family.  The applicant stated his hasty departure from Germany was a clear indication of their attempt to further exasperate the situation.  The applicant requested that his son's guidance counselor be contacted to confirm or deny the information he was given and, if confirmed, the NJP he received was unfounded and should be revoked altogether.

5.  On 1 August 2011, after consideration of all matters presented, his appeal was denied and his commander directed that the DA Form 2627 be filed in the performance section of his AMHRR.

6.  The applicant PCS'd to Fort Polk, Louisiana on 10 August 2011. 

7.  On 29 September 2011, an NCOER completed on the applicant lists an O-5 (Chief of Protocol) as his rater, an O-5 (Commandant) as his senior rater, and a colonel (O-6) (Assistant CoS) as his reviewer.  The NCOER shows all three individuals were assigned to the same organization.  In Part IVa. – Army Values, the applicant received from his rater a "NO" rating in honor and a "NO" rating in integrity.  The same individual shown on his OER as his senior rater is the same individual who initiated the NJP proceedings.

8.  In Part IVb. – Competence, the rater included in the NCOER the statement "personal actions as a leader resulted in two official inquiries about judgment and integrity, one led to non-judicial punishment."  He received a "Needs Improvement (Much)" rating by his rater.  In Part IVd. – Leadership, the rater included the statement "counseled by the Senior Army Element Commander on failure to set the proper example for subordinates."  He received a "Needs Improvement (Some)" rating.

9.  In Part Ve. – Senior Rater Bullet Comments, on his NCOER his senior rater included the following comments:

* "do not promote, assign according to the needs of the Army"
* "failed to set the example as a senior non-commissioned leader in more than one area; able to accomplish the mission but not professionally lead Soldiers"
* "send to school directly related to positions assigned that are commensurate with current grade and capability to perform"
* "NCO refused to sign evaluation"

10.  The applicant received a "Marginal" rating from his rater in overall potential for promotion and/or service in positions of greater responsibility.  He received a "Poor" rating in overall performance and a "Fair" rating in overall potential for promotion and/or service in positions of greater responsibility from his senior rater.

11.  On 15 March 2012, the applicant received notification of denial of continued active duty service under the QMP.  He was told the QMP Selection Board conducted a comprehensive review of his record and, as a result, the Director of Military Personnel Management approved the board's recommendation that he would be involuntarily discharged from the Army not later than 1 October 2012.  He was provided the following options:

* He could request voluntary retirement under any provision of law for which he was otherwise eligible
* He could choose to request voluntary discharge
* He could request retention on active duty  

12.  In the notification, the applicant was told if he elected to appeal, any such appeal was limited to newly-discovered evidence, the subsequent removal of documents from his AMHRR, and/or material error in his record when reviewed by the selection board.

13.  On 1 May 2012, the applicant was notified that his appeal for denial of continued service was denied.

14.  On 31 July 2012, the applicant's son received his High School Diploma from the State of Louisiana, DeRidder High School.

15.  The applicant retired on 30 September 2012, due to attaining sufficient service for retirement.  He completed 23 years, 8 months, and 26 days of net active service this period.

16.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

17.  Army Regulation 623-3 (Evaluation Reporting System).  It establishes the policies and procedures for preparing, processing, and using the evaluation reports.  The regulation states that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions have been noted.  His supporting evidence has been considered.

2.  Counsel has provided insufficient evidence to support his contention that the lieutenant colonel who administered his NJP was outside of his chain of command.  Absent evidence to the contrary, it must be presumed that the individual was, in fact, in his chain of command.

3.  The applicant's rater received an email from the School Liaison Officer stating that the applicant's son would be in the 11th grade when school started for the 2011/2012 school year.

4.  While it appears there is more to this case then meets the eye, whether or not there was intent to deceive is not clear.  The available evidence shows the applicant's son graduated from high school on 31 July 2012, as indicated in the NJP he received.  It does not appear that the statement he made was false.  Therefore, the NJP should be removed from his official record and he should be reimbursed the forfeiture of pay in the amount of $1,000.00.

5.  There is insufficient justification for removing the NCOER in question.  However, in the NCOER the statement "personal actions as a leader resulted in two official inquiries about judgment and integrity, one led to non-judicial punishment" was included by his rater.  The NJP should be removed from his official record; therefore, the NCOER should be amended by deleting that part of the statement referencing the NJP/Article 15.

6.  The applicant was not involuntarily retired from the Army.  He received notification of denial of continued active service under the QMP.  He elected to voluntarily retire due to sufficient service for retirement as opposed to being involuntarily discharged under the QMP.  Counsel's request for termination of the applicant's 'involuntary retirement" should be denied.

7.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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:

	a.  Setting aside and removing from his AMHRR the DA Form 2627, dated    20 July 2011.

	b.  Reimbursing him the pay that he forfeited in the amount of $1,000.00.

	c.  Amending Part IVb of his NCOER, dated 29 September 2011, by deleting that portion of the rater's statement that indicates "one led to non-judicial punishment."

2.  The Board further determined that the evidence presented was 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 removing the entire NCOER 

from his AMHRR, terminating his involuntary retirement, and reversing the QMP Board's decision.




      ___________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)                                         AR20120017848



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ABCMR Record of Proceedings (cont)                                         AR20120017848



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