IN THE CASE OF:	  

		BOARD DATE:  20 March 2014

		DOCKET NUMBER:  AR20140000802 


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, in effect, removal from the restricted portion of his official military personnel file, now known as the Army Military Human Resource Record (AMHRR), all documents related to nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) to include a field grade letter of reprimand (LOR) issued based on the results of an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation conducted in April 2009.

2.  The applicant states this punishment was placed in his restricted folder versus a local file.  This now affects his continued service by placing him at risk for involuntary separation from the Army as a result of the drawdown of company grade and junior field grade officers.  The NJP stemmed from an AR 15-6 investigation of the brigade staff he served with as a first lieutenant (1LT) in Afghanistan.  He was charged with conduct unbecoming an officer for referring to two officers as "bitches and troublemakers."  The purpose of the investigation was to determine if this event occurred, and whether it resulted in a hostile work environment.  The investigating officer suggested that he receive a local file LOR.  The authority of punishment was delegated by the Commanding General to his local commander.  He received a negative written counseling for his comments, in addition to apologizing in front of the brigade staff twice.  Additionally, upon extending for an additional year in Afghanistan, he received field grade NJP with a punishment of writing a 1000-word essay and had a field grade LOR placed in his restricted file.

3.  At the time of the NJP proceedings he was a National Guardsman mobilized as a 1LT to Afghanistan, serving a second tour overseas.  When he received the NJP and LOR, the Trial Defense Service Counsel at Bagram Airfield advised him to proceed with taking the punishment as he was assured additional punishment would be a local LOR.  He had no knowledge of how an AR 15-6 investigation functioned or what his rights were due to his relatively short time in the Army at the time of the proceedings.  Colonel (COL) S____ S____, the convening authority, and the rest of his chain of command assured him that this would have no bearing on his career.  He was since promoted to the rank of captain, served a third consecutive tour in Afghanistan, and received numerous impact awards for his service without issue.  He was accepted on active duty and allowed to train in additional intelligence areas of concentration with no issue.  He consulted with legal counsel at Bagram before he demobilized in 2011 and at Fort Gordon in 2013.  Neither time could the judge advocates determine what exactly his punishment was as there was no precedent for what they read.  He consulted the Staff Judge Advocate at U.S. Army Central Command (USCENTCOM) Forward- Jordan and Trial Defense at Camp Arifjan, Kuwait.  Both offices were surprised by the proceedings, and had no suggestions other than to contact the Army Board for Correction of Military Records (ABCMR).  He did not realize the impact his restricted folder would have until he was informed in October 2013 that he was at risk of involuntary separation from the Army due to this derogatory information in his file.

4.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  On 14 May 2006, he was discharged as an enlisted member of the Army National Guard (ARNG).  On 15 May 2006, he was appointed a Reserve commissioned officer in the ARNG in the rank of second lieutenant.   

2.  He was ordered to active duty from his ARNG unit effective 19 March 2008 in support of Operation Iraqi Freedom.

3.  He was ordered to active duty for operational support effective 23 April 2009. 

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 19 March 2008 through 22 September 2011 shows he served in Iraq and Afghanistan during that period.

5.  A Headquarters, Combined/Joint Task Force-101 Memorandum for Record, dated 18 March 2009, provides the Investigating Officer's (IO) findings and recommendations of an AR 15-6 investigation related to the applicant's misconduct.

   a.  The executive summary portion of the memorandum stated the applicant did make disrespectful comments about Lieutenant Colonel (LTC) F____ and Major H____.  While the Operation, Mentoring and Liaison Team (OMLT) Commander, COL M____, took actions he felt were sufficient to address the inappropriate comments, the two officers did not feel those actions were commensurate to the severity of the offenses and believed their concerns were discounted.  The OMLT's work environment contributed to the applicant's act of disrespect and the disparity in perceptions.
   
   b.  The IO, COL J___ S___, stated in part, that he did not believe COL M____'s actions were commensurate to the severity of the offenses given that the applicant's actions were potentially punishable under the UCMJ (Article 89, disrespect toward a superior commissioned officer and Article 133, conduct unbecoming an officer and gentleman).  The IO found that COL M____ verbally counseled the applicant, discussed the incident with LTC F____ and Master Sergeant T____, and held two unit meetings to discuss the incident.  The IO indicated COL M____'s actions did not sufficiently reflect an enforcement of Army standards nor were the actions sufficient to maintain proper military discipline and order.
   
   c.  The IO recommended the applicant receive a locally filed LOR for his disrespectful comments about LTC F____ and MAJ H____.

6.  On 2 May 2009, the applicant accepted NJP under the provisions of Article 15, UCMJ for behaving himself with disrespect in language toward two superior commissioned officers.  The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows the punishment imposed was a written reprimand.  He did not appeal the decision.  The imposing authority directed filing the DA Form 2627 in the restricted folder of the applicant's AMHRR.  The NJP proceedings are currently filed in the restricted folder of his AMHRR per instructions on the form.

7.  On 2 May 2009, COL S____ S____ issued him an LOR.  COL S____ S____ stated that having reviewed the investigation pertaining to the applicant's misconduct, his actions demonstrated a lack of maturity required of an officer in the U.S. Army.  The investigation further demonstrated that he had a less than sufficient understanding of military bearing and courtesy.  He stated the applicant's display of poor judgment was unacceptable and would not be tolerated.  He stated that officers must understand that in order to receive respect they must render proper respect.  He stated that to ensure it does not happen again, the applicant was to complete a 1000-word report on the importance of maintaining discipline and rendering proper military courtesies at all times.  He emphasized that the applicant's actions had set a bad example for the Soldiers and the officers around him.  On the same date, the applicant acknowledged receipt of the LOR.

8.  The applicant's record contains DA Forms 67-9 (Officer Evaluation Report (OER)) for three rating periods after receiving the NJP and LOR in question.  On two of these rating periods his rater marked the box "outstanding performance, must promote" and on all three reports his SR marked the box for "best qualified." 
   
9.  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.

10.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program.  It states that once placed in the AMHRR, a document becomes a permanent part of that file.  The document will not be removed from the AMHRR or moved to another part of the AMHRR unless directed by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of a record of NJP and LOR from the restricted folder of his AMHRR.

2.  The record shows the imposing authority had the results of an investigation upon which to base his decision to impose the NJP with imposition of a LOR as punishment and make a filing decision.  Evidence shows the LOR accurately summarizes the behavior for which it was imposed.

3.  The DA Form 2627 documenting his NJP was filed in the restricted folder of 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.  

4.  Notwithstanding his excellent evaluation reports since he received the NJP in question, there is an insufficient basis upon which to grant the 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 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)                                         AR20140000802



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ABCMR Record of Proceedings (cont)                                         AR20140000802



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