IN THE CASE OF:	  

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130016376 


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 the removal of the following documents from her Army Military Human Resource record (AMHRR):

* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 4 November 2009
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 10 September 2009 through 4 November 2009 (hereafter referred to as the contested NCOER)

2.  The applicant states:

	a.  She would like the relief-for-cause (RFC) DA Form 2166-8 and Article 15, dated 4 November 2009, removed from her records.  It was a substantive error to have found her guilty of dereliction of duty in violation of Article 92, UCMJ and it therefore should be removed from her records.  The RFC NCOER that followed this improper Article 15 also should be removed as its basis was derived solely from the Article 15.  Part IV, Block f on the NCOER states that "NCO has been notified of reason(s) for relief."  She was informed that the relief for cause was solely based on the Article 15. 

	b.  She was found guilty of dereliction of duty at a field-grade Article 15 by omitting facts in a sworn statement and attempting to willfully mislead her command.  In order to be derelict in one’s duty, the following must be shown. First, she had to have a certain duty.  Second, it must be shown that she knew or reasonably should have known of the duty.  Lastly, it must be shown that she was willfully derelict in that duty.  In this case, she was accused of dereliction by "willfully omitting facts" and "attempting to mislead" her command in a sworn statement.  There are multiple reasons why this Article 15 was given in error and must be corrected by removal from her records:

		(1)  First, the only evidence that can be construed as her omitting facts or attempting to mislead is derived from her sworn statement given on 1 October 2009.  Her version of the events of that night is the truth, which is confirmed by the fact that the charges against her were dismissed on 13 June 2012 and she therefore cannot have omitted facts that she had a duty to disclose.  

		(2)  Second, her sworn statement was an open ended statement for which she was not asked any specific questions that she had a duty to respond to with an affirmative answer.  As such, there was no duty to provide any information. 

		(3)  Lastly, even if Lieutenant Colonel (LTC) Gixxxm believed the officer's story in its entirety, nothing in her statement can be construed as willfully omitting or attempting to mislead.  She freely gave a sworn statement that was the basis for the Article 15 on 1 October 2009.  In this statement she told the truth about the events regarding an arrest earlier that morning.  The statement was open ended and was not in response to any direct question from her command.  It was solely her version of the events of that night.  She had no duty to provide any specific details nor did she have any knowledge of what specifically her command wanted to know.  She simply told the truth regarding what she felt was important from that night. 

	c.  After giving this statement, she was not asked to elaborate on anything she wrote nor was she ever told that the command wanted more information. Had she been asked to provide more information she would have done so as she did not then, nor does she now, have anything to hide.  She simply told the truth. It is apparent that LTC Gixxxm believed the version of the events of that morning as told by Officer Kaxxxxxxxxer and disregarded her version of events in its entirety.  Officer Kaxxxxxxxxer’s version of the events of that night are inaccurate and all charges relating to her arrest have been dismissed and expunged from her record (proof of which is attached to her submission as an exhibit).  

	d.  Even if one assumes for argument's sake that the officer’s version of the story is accurate, nothing in her statement constituted dereliction of duty.  She had no duty to provide any specific information.  She was never asked a question that she refused to answer or answered untruthfully.  Her sole statement was an open-ended statement of the events of that evening.  Her command could not have had an expectation of receiving any particular information as no one asked her to provide any specific information.  She was simply told to write a statement and she did as she was ordered. 

	e.  She would have been willing to write another statement or statements if asked that dealt with any portion of that night’s events, but she was never asked to provide such a statement.  After receiving the Article 15, she was informed that she was also going to receive an RFC NCOER.  Further, she was informed that it was because she received an Article 15 that she was receiving the RFC NCOER. Further, evidence that it was the Article 15 itself and not any action on her part that was used to justify the relief for cause is that the through date of the NCOER is the same date as the Article 15.  Therefore, it is improper for the RFC NCOER to remain in her records as its sole basis for existence was her receiving an inappropriate Article 15.

3.  The applicant provides:

* Letter of recommendation
* State petition and order for expunction
* Attorney statement
* Contested NCOER
* Contested Article 15

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior service, the applicant enlisted in the Regular Army on 14 May 2007 and she held military occupational specialty 68W (Healthcare Specialist).  

3.  She served through a reenlistment in a variety of assignments and she was promoted to sergeant (SGT)/E-5 on 1 December 2007.
4.  On 1 October 2009, she was apprehended by civil authorities in Cumberland County, NC, for driving while impaired. 

5.  On 26 October 2009, LTC Gixxxm, the applicant's battalion commander, advised her that he was considering whether she should be punished under Article 15, UCMJ, for:

* dereliction in the performance of duties in that she omitted facts in her statement and willfully attempted to mislead her command regarding the facts and circumstances of her arrest for driving under the influence of alcohol on 1 October 2009
* with intent to deceive, making a false official statement to a trooper that she had nothing to drink

6.  After having been afforded the opportunity to consult with counsel, the applicant indicated she did not demand trial by a court-martial and elected a closed Article 15 hearing.  She further requested someone to speak in her behalf and that she would present matters in defense in person.

7.  On 10 August 2011, she accepted NJP under the provisions of Article 15, UCMJ, for violating Article 92 of the UCMJ, dereliction in the performance of duties in that she omitted facts in her statement and willfully attempted to mislead her command regarding the facts and circumstances of her arrest for driving under the influence of alcohol on 1 October 2009.  She was found not guilty of the other charge.  

8.  Her punishment, as indicated on the DA Form 2627, consisted of a reduction to specialist (SPC)/E-4 (suspended until 2 February 2010).  The imposing commander directed the original DA Form 2627 be filed in the restricted section of the applicant's AMHRR.  Additionally, on 4 November 2009, the applicant initialed the block indicating she did not wish to appeal. 

9.  The DA Form 2627 is currently filed in the restricted section of the applicant's AMHRR.

10.  During the month of November 2009, the applicant received the contested RFC evaluation report that covered 1 month of rated time from 10 September 2009 through 4 November 2009 for her duties as a Healthcare Sergeant, assigned to Headquarters and Headquarters Company, 82nd Sustainment Brigade, Fort Bragg, NC.  Her rater was Master Sergeant CER, the Medical Operations NCO; her senior rater was First Lieutenant LDB, the Medical Operations Officer; and her reviewer was Captain RLW, the Company Commander.  The NCOER shows in:
	a.  Part IVa (Army Values/Attributes/Skills/Actions), the rater checked box "NO" for "Honor" and "Integrity" and inserted the following comment:

* questionable integrity when faced with adversity
* an articulate and loyal NCO that is committed to her Soldiers' welfare
* used foresight in the execution of all assigned tasks

	b.  Parts IV (Values/NCO Responsibilities) b (Competence), c (Physical Fitness and Military Bearing), and e (Training), the rater checked box "Excellence" or "Success" and inserted his comments.

	c.  Part IVd (Leadership), the rater checked box "Needs (Much) Improvement" and inserted the following comments:

* questionable decision making process resulted in a decision that was unfavorable to the Army core values
* extremely perceptive; hardworking and competent NCO that ascertained positive results toward assigned tasks; section's efficiency continued to improve

	d.  Part IVf (Responsibility and Accountability), the rater checked box "Needs (Some) Improvement" and inserted the following comments:

* provided medical coverage for over 400 Soldiers on seven separate ranges resulted in enhanced unit readiness and pre-deployment requirements met
* encouraged her Soldiers to grow personally and professionally by focusing on their areas of weakness and improving them
* NCO has been notified of reason(s) for relief

	e.  Part V (Overall Performance and Potential) a and b show the rater checked box "Marginal" and listed the three positions in which the applicant could best serve the Army.

	f.  Part Vc (Senior Rater - Overall Potential) and d (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility) show the senior rater checked box "Successful" for overall performance and "Fair" for overall potential and inserted the following comments in e (Senior Rater Bullet Comments):

* do not promote at this time; lack [i.e., lacks] experience and maturity
* send to BNCOC [Basic NCO Course] when slot is available 
* superb potential; will excel in any duty position with additional grooming
* refused to take responsibility for her actions

11.  On 1 August 2010, she was promoted to staff sergeant (SSG)/E-6.

12.  The contested NCOER was accepted by Headquarters, Department of the Army (HQDA) for inclusion in her AMHRR on 1 November 2010.

13.  There is no indication she appealed the contested NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board. 

14.  She provides an approved petition and order for expunction, filed on 16 October 2012 and approved by the judge on 19 October 2012.  The court ordered that any and all entries relating to her apprehension, charge, trial or conviction be expunged from the records of the court.l

15.  Army Regulation 27-10 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 nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial:

	a.  Paragraph 3-37c(1)(a) states that for Soldiers in the ranks of SGT 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. 

	b.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states that applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the ABCMR.  It further indicates there must sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR.

16.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the ERS.

	a.  Paragraph 4-7 states an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The results of a commander's inquiry do not constitute an appeal.  They may be used, however, in support of an appeal.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered.

	b.  Honor, one of the seven Army values, means an NCO lives up to all Army values.  Soldiers make honor a matter of daily living – Soldiers who develop the habit of being honorable and solidify that habit with every value choice they make.  Honor is a matter of carrying out, acting, and living the values of respect, duty, loyalty, selfless service, integrity and personal courage in everything he/she does.

	c.  Integrity, one of the seven Army values, means doing what's right, legally and morally.  Integrity is a quality a Soldier develops by adhering to moral principles.  It requires that the Soldier "do and say" nothing that deceives others. As a Soldier's integrity grows, so does the trust others place in him/her.  The more choices a Soldier makes based on integrity, the more this highly-prized value will affect his/her relationships with other Soldiers, family and friends, and, finally, the fundamental acceptance of own self.

17.  Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

18.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 states an NCOER is filed in the performance section of the AMHRR and an Article 15 is filed in performance or the restricted section of the AMHRR as directed by the imposing officer.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Article 15:  

	a.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an Article 15 hearing after considering all the evidence submitted by the applicant.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense(s).  The evidence of record confirms the applicant waived her right to a trial by court-martial and opted for an Article 15 hearing.

	b.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15, UCMJ.  This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided a defense attorney, she was given the right to demand trial by court-martial, and she was afforded the opportunity to appeal the Article 15 through the proper channels.  The applicant elected not to appeal.  The imposing commander directed filing the Article 15 in the restricted section of her AMHRR.  This is where the subject Article 15 is currently filed.

	c.  Her NJP proceedings were conducted in accordance with law and regulation and her Article 15 and allied documents are properly filed in the restricted section of her AMHRR as directed by the imposing commander.  The fact that the judge ordered all charges be expunged from court records at a later date does not invalidate the Article 15.  The court did not state that the offense was not committed.  

	d.  Driving under the influence cases are frequently dismissed or settled through agreement or because of evidentiary issues.  The commander still may rely upon the facts surrounding an arrest and, as occurred here, determined whether the applicant misled her chain of command in relating the facts surrounding her arrest.

   e.  She provided insufficient evidence to show the Article 15 is untrue or unjust.  Therefore, she is not entitled to the removal of this contested Article 15 from her records. 

2.  With respect to the contested NCOER: 

	a.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant was an NCO, whom the Secretary of the Army had reposed special trust and confidence in her patriotism, valor, fidelity, and professional excellence.  As an NCO, she was in a position of trust and authority. Here, the applicant violated that trust by driving while impaired. 

	b.  The applicant received an RFC NCOER and she was notified of the reasons for her relief.  The ratings in the contested NCOER were the considered opinions and objective judgments of the rating officials at the time the report was rendered.  She was relieved from her duties because her rating officials lost their trust and confidence in her ability to be a leader because they believed that by driving while impaired and while holding the rank of "SGT" and then making a false statement to her chain of command, the applicant clearly failed to live up to the Army values.  

	c.  By regulation, in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.  In this case, the applicant did not provide sufficient evidence to warrant the removal of the contested NCOER.  

	d.  There is no evidence in the available records and the applicant did not provided sufficient evidence showing the contested NCOER was inaccurate, unjust, or otherwise flawed.  In view of the foregoing, there is no basis for granting this portion of the applicant's requested relief.

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 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)                                         AR20130016376



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ABCMR Record of Proceedings (cont)                                         AR20130016376



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