IN THE CASE OF:	  

		BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20130013376 


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 a record of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), from his Army Military Human Resource Record (AMHRR)
* an upgrade of his general under honorable conditions discharge

2.  The applicant states:

   a.  The entire process from his Army Regulation 15-6 investigation to the eventual Show Cause Board was corrupted by his unit.  His battalion broke almost every regulation in an attempt to end his career.  His career and all of his benefits were taken away because of prejudice and personal bias.  The Army Regulation 15-6 investigation was grossly and improperly handled.  The fraternization charge was proven to be without basis during his Show Cause Board.  The complaint of maltreatment within the specification was never processed through Equal Opportunity by the Soldier or the chain of command.
   
   b.  A case was built against him without solid proof and statements based on hearsay.  There is no proof that he abused his power as an Army officer.  His Fifth Amendment rights of due process were not adhered to.  He was discharged because he was accused of fraternization and maltreatment of a Soldier.  At no time are there any specific dates of such instances when he was alone with this Soldier because he never placed himself in such a position as expressed by other Soldiers.  He never attempted to touch this Soldier nor did he maltreat this Soldier in any manner.

	c.  He never fraternized with the Soldier and only had a working relationship with the Soldier.  The Soldier was questioned about his interaction with female Soldiers and her statement was taken out of context.  The Soldier tried to clarify her statement and made an additional statement and spoke on his behalf.  There was no attempt to establish a relationship more than work.  Prior to refraining from interacting specifically with this Soldier, they had lunch during duty hours four times and dinner once and each time included Soldiers from Alpha and Bravo Company Supply.  The allegations of him making sexual advances are untrue, unsubstantiated, and uncorroborated.  He never had females in his living quarters nor has he ever been in the living quarters of a female Soldier.  At no time did he have knowledge of the Soldier's living quarters.  This is not the first time the Soldier has made such a serious allegation.  He has total respect for women and would not put himself on someone.

   d.  He served in the Army for 20 years and he had 11 years of enlisted service.  He was never counseled on what his duties were as the S9 Deputy and S9 Noncommissioned Officer-in-Charge until the Army Regulation 15-6 investigation.  He received no formal counseling related to the allegations until he met with the commander on 12 August 2011.  Prior to this event he had received an unfavorable flag suspending favorable actions posted in his records on 1 July 2010 without proper notification from his chain of command.  On 30 July 2011, the investigation was closed without affording him the opportunity to seek counsel or respond appropriately to the investigating officer.

	e.  On 23 September 2011, he was directed to report to the brigade commander's office.  He was informed that he would not be presenting anything in his own behalf and the statement he prepared before learning of the Article 15 was directed to be removed before he entered the commander's office.

	f.  His family has suffered, and an injustice has erased 20 years and 1 month of military service.  He is unable to retire, most of his benefits are gone, and he cannot find a job because of the codes on his DD Form 214.  He put his life on the line multiple times in support of the Nation and now has nothing to show for it.

3.  The applicant provides:

* self-authored statements
* chronological timeline
* DA Form 67-9 (Officer Evaluation Report (OER))
* DA Form 4856 (Developmental Counseling Form)
* email, dated 4 July 2011
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* Army Regulation 15-6 investigation findings
* 13 witness/character statements
* DA Form 4037 (Officer Record Brief)

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the U.S. Army Reserve, the applicant was commissioned as a second lieutenant on 7 March 2003.  He was promoted to captain on 1 June 2006.

2.  A DA Form 3975 (Military Police Report), dated 4 September 2009, shows:

   a.  Between 30 July 2009 and 18 August 2009, the applicant passed seven bad checks totaling $951.63 to the Army-Air Force Exchange Service (AAFES).  Each check required a $25 returned check fee and brought the total amount owed to AAFES to $1,126.63.  
   
   b.  On the same date, the applicant was advised of his legal rights; however, he waived his rights and rendered a sworn written statement admitting to the offense of making and uttering seven worthless checks by dishonorably failing to maintain sufficient funds on post, punishable under Article 134, UCMJ.  The applicant stated AAFES advised him he had until 15 September 2009 to pay the total amount due.

3.  On 4 September 2009, the applicant paid his dishonored checks in full.

4.  On 9 October 2009, the applicant's commanding officer requested nonjudicial proceedings against the applicant for:

* repeatedly violating ration control policy exceeding the established limitation for 5 consecutive months
* borrowing money from several enlisted Soldiers
* knowingly uttering checks while having insufficient funds

5.  On 12 November 2009, the applicant accepted NJP under the provisions of Article 15, UCMJ, from the Commanding General (CG), Headquarters, Eighth United States Army, for:

* on or about 1 December 2008 and 1 August 2009, wrongfully engaging in business relationships with enlisted Soldiers by borrowing cash and merchandise
* wrongfully and unlawfully uttering to the AAFES the following checks:

*	on or about 19 June 2009, $300
*	on or about 5 July 2009, $100
*	on or about 11 July 2009, $100
*	on or about 12 July 2009, $100
*	on or about 14 July 2009, $100
*	on or about 17 July 2009, $100
*	on or about 22 July 2009, $151.63

6.  The CG imposed forfeiture of $2,598, suspended to be automatically remitted if not vacated before 11 December 2009; restriction to the limits of place of duty, lodging, place of worship, restricted to installation of assignment; restriction from unsupervised visits with spouse for 30 days; and a written reprimand.  The CG also directed filing of the Article 15 in the performance section of his AMHRR.

7.  On 17 November 2009, he was reprimanded via a general officer memorandum of reprimand (GOMOR) as part of his punishment under Article 15, UCMJ.

8.  A review of his AMHRR reveals that the contested DA Form 2627 with the allied documents is filed in the performance section of his AMHRR.

9.  On 27 October and 24 November 2011, the applicant acknowledged receipt of an Initiation for Elimination Memorandum recommending his involuntary separation from active duty.

10.  On 7 December 2011, the applicant provided a self-authored memorandum for record explaining his career, marital and financial issues, and the circumstances leading to his show cause board.

11.  On 8 December 2011, a board of officers convened and recommended the applicant's discharge with a general under honorable conditions.  The commanding general approved the board's recommendation.  Additionally, the board substantiated the following offenses:

* maltreat Private First Class "C," a person subject to his orders:

*	on or about 20 February 2011, by saying to her, "I like Asian women and "C" you are my new crush and I will call you honey," or words to that effect

           *	on or about 22 February 2011, maltreat PFC "C" by telling her he wanted a kiss while grabbing her hand
           *	between on or about 1 March 2011 and on or about 31 March 2011, by requesting her to engage in an intimate relationship with him
           *	between on or about 1 March 2011 and on or about 31 March 2011, by driving her to her living quarters and whispering to her "tonight baby," or words to that effect
           *	between on or about 7 March 2011 and on or about 7 April 2011, by stating, "I like Asian women," while touching her leg
           *	between on or about 7 March 2011 and on or about 7 April 2011, by telling her that he was going to put her in for an award while attempting to touch her
           *	between on or about 1 December 2008 and on or about 1 August 2009, wrongfully engaging in business relationships with enlisted Soldiers by borrowing cash and merchandise

* wrongfully and unlawfully utter to AAFES checks payable to the order of cash knowing he did not have sufficient funds:

*	on or about 19 June 2009, for $300
*	on or about 5 July 2009, for $100
*	on or about 11 July 2009, for $100
*	on or about 12 July 2009, for $100
*	on or about 14 July 2009, for $100
*	on or about 17 July 2009, for $100
*	on or about 22 July 2009, for $151.63

12.  On 15 February 2012, the Department of the Army Board of Review for Eliminations recommended the applicant be eliminated from the Army with a general under honorable conditions discharge based on misconduct and moral or professional dereliction.

13.  On 17 May 2012, the Assistant Secretary of the Army, Manpower and Reserve Affairs, approved the board's recommendations to eliminate the applicant from the Army.

14.  On 14 June 2012, the applicant was discharged with a general under honorable conditions discharge with the narrative reason for separation of unacceptable conduct.

15.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.  Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

	a.  Paragraph 3-28a states the basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of NJP has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

	b.  Paragraph 3-37a states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folders in the AMHRR will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by superior authority.

16.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.  The AMHRR replaces the official military personnel file (OMPF).  Folders and documents previously authorized for filing in any part of the OMPF will remain in the AMHRR.  

	a.  Paragraph 2-3 (Composition of the AMHRR) 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 Headquarters, Department of the Army 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.

	b.  Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the AMHRR and/or the interactive Personnel Electronic Records Management System.  Table B-1 states an Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4 or 5 of DA Form 2627.

17.  Army Regulation 600-8-24 (Officer Transfers and Discharges) sets forth the basic authority for the separation of officers.

     a.  Paragraph 1-22a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

     b.  Paragraph 4-2b states elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interest of national security for:

*	Discreditable or intentional failure to meet personal financial obligations
*	Mismanagement of personal affairs that are unfavorably affecting an officer's performance of duty
*	Mismanagement of personal affairs to the discredit of the Army
*	Intentional omission or misstatement of fact in official statement or records for the purpose of misrepresentation
*	Acts of personal misconduct
*	Intentional neglect of or failure to perform duties
*	Conduct unbecoming an officer
*	Conduct or actions that result in the loss of professional status, such as withdrawal, suspension, or abandonment of professional license, endorsement, certification that is directly or indirectly connected with or necessary to perform duties

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. An SPD code of "JNC" applies to officers who were involuntarily discharged under the provisions of Army Regulation 600-8-24, paragraph 4-2b for unacceptable conduct.

DISCUSSION AND CONCLUSIONS:

1.  With regard to the decision to impose NJP, there is no evidence that he was deprived of his right to present matters in defense, extenuation, or mitigation or that he was deprived of his right to appeal the NJP.
2.  The DA Form 2627 documenting his NJP was filed in his AMHRR as directed by the imposing authority.  There is no documentary evidence of error or injustice in the imposition of the NJP or in the filing decision.  Therefore, there is an insufficient basis upon which to grant the requested relief.

3.  With regard to an upgrade of his general under honorable conditions discharge, the applicant was eliminated for conduct unbecoming an officer.  The discharge proceedings were conducted in accordance with applicable law and regulations.  He provides insufficient evidence to show the Army Regulation 
15-6 investigation or the Show Cause Board were improperly conducted.  The character of service and reason for discharge are commensurate with the applicant's overall record of military service as an officer.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x_____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20130013376



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ABCMR Record of Proceedings (cont)                                         AR20130013376



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