BOARD DATE:	  17 December 2014

		DOCKET NUMBER:  AR20140006812 


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 correction of his military records by setting aside his nonjudicial punishment (NJP) and removing it from his Official Military Personnel file (OMPF).

2.  The applicant states his chain of command:

	a.  failed to adhere to the requirements of Article 31, Uniform Code of Military Justice (UCMJ) concerning his rights against self-incrimination;

	b.  failed to establish the perquisite duties he allegedly negligently performed relating to his handling of the ammunition incident at Frankfurt International Airport;

	c.  violated his Fifth Amendment right by requiring self-incrimination and punishing him for not self-reporting the loss of ammunition; and

	d.  used unlawful command influence by requiring the investigative officer (IO) to amend his Army Regulation 15-6 (AR 15-6) Report on at least two separate occasions until the proper "command" conclusion was reached.

3.  The applicant provides a 10-page brief prepared by his counsel.  It contains copies of the following attachments:

* Tab 1:  Applicant's personal statement
* Tab 2:  Photograph of the range
* Tab 3:  Photograph of Equipment
* Tab 4:  A memorandum, Field Grade Officer Review, dated 9 May 2011
* Tab 5:  A DA Form 2823 (Sworn Statement), dated 25 March 2011
* Tab 6:  A DA Form 2823, dated 24 March 2011
* Tab 7:  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate) and DA Form 2823 (6 pages), both dated 25 March 2011 
* Tab 8:  A memorandum, Report of Investigation, dated 10 May 2011
* Tab 9:  A DA Form 2627 (Record of Procedures Under Article 15, UCMJ), dated 15 June 2011 (page 1 only)
* Tab 10:  U.S. Court of Appeals for the Armed Forces, Opinion of the Court, dated in 2005 and 2006 (25 pages)
* Tab 11:  Policy Memorandum Number 08-02, Rules of the Road, dated 5 December 2008 (3 pages)
* Tab 12:  Policy Memorandum, Rules of the Road for Deployed Soldiers Number 4-42, dated 25 July 2012 (5 pages)
* Tab 13:  A DA Form 2823, dated 25 March 2011
* Tab 14:  U.S. Court of Appeals for the Armed Forces, Opinion of the Court, dated in 1986 (3 pages)
* Tab 15:  A DA Form 67-9 (Officer Evaluation Report) for period ending on 29 June 2011
* Tab 16:  Ten letters of support
* Tab 17:  A memorandum requesting leniency, dated 15 June 2011 and a character reference letter, dated 12 February 2014

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the NJP the applicant received on 15 June 2011 be set aside and that his OMPF be corrected to reflect he was never received an NJP.

2.  Counsel states in an 11-page brief the following summarized facts, legal issues, and arguments:

	a.  Facts concerning the applicant's assignment to the Civil Affairs Team (CAT) 642:

* The applicant was assigned on short notice to deploy to Tajikistan and take immediate command of the CAT 642
* The applicant was to have no contact with the relieved team leader
* The CAT 642 was well known as the worst team in the battalion and possibly in the brigade
* The CAT 642 had a reputation for being unreliable, careless, and had several members with alcohol problems
* Upon arrival, the applicant immediately recognized that members of the CAT 642 did not understand the mission and was shunned by key embassy partners
* The applicant was surprised to find that members of CAT 642 possessed a strong desire to perform and excel but had been held back by the previous leader
* The applicant's significant turnaround of CAT 642 was extraordinarily difficult but extremely rewarding
* After a few months under the applicant's leadership, CAT 642 became the best team and established baselines for current and future mission sets in Central Asia

	b.  Facts underlying redeployment from Tajikistan:

* The applicant's team was required to travel from Tajikistan to Frankfurt, Germany, and then on to Fort Bragg, NC
* One team member, a staff sergeant (SSG), used a black bag that was previously used by another Soldier to carry his belongings during the redeployment
* The SSG did not pack any ammunition in the black bag and did not discover any ammunition that was already in the bag
* Customs at Frankfurt Airport discovered two clips of ammunition in the black bag and discussed the matter with the applicant
* The previous owner of the black bag had taken military transport and was not present in Frankfurt, Germany
* The applicant had no points of contact for the U.S. Army/U.S. Consular Representation in Germany and no pay phones were available; their cell phones were inoperable in Germany
* The applicant had no immediate means of communicating with his brigade
* The applicant informed the lead German customs agent that they were in the U.S. Army, that he was the SSG's commander, and that they were redeploying from Tajikistan
* The lead customs agent informed the applicant that they would not be charged, they would make their flight, and that this type of incident happened all the time with Soldiers returning from deployments
* Once on the airplane, the SSG informed the applicant that the ammunition had been confiscated and that he did not sign anything
* Later, when the applicant was asked why he did not report the incident at the airport he replied that all team members had boarded the plane, no one was charged, and the team felt the situation had been satisfactorily resolved

	c.  Facts relating to the AR 15-6 investigation and NJP:

* After being at the home station for several months, the applicant's chain of command learned about the incident at the Frankfurt International Airport
* A captain who was junior to the applicant was appointed to conduct an  AR 15-6 investigation
* On 26 April 2011, the IO completed his investigation report (159 pages)
* On 9 May 2011, a major was appointed to conduct a review of the IO's findings and recommendations
* The major completed her review and published a 2-page report
* The major concluded that the applicant had failed to report the incident because he thought his higher headquarters would never learn of it
* On 15 June 2011, the applicant received NJP for dereliction of duty, for failing to report the loss of ammunition, failing to account and store ammunition, and failing to search his team's bags for contraband
* The applicant's punishment consisted of an oral admonishment
* The applicant did not appeal the punishment

	d.  Legal issues:

* A failure to adhere to the requirements of Article 31, UCMJ by chain of command
* A failure to establish the requisite duties the applicant allegedly negligently performed related to his handling of ammunition
* A violation of the applicant's Article 31 and Fifth Amendment rights against self-incrimination by punishing him for not self-reporting the loss of ammunition
* Unlawful command influence in requiring the IO to amend his AR 
15-6 Investigation Report
* Unethical and erroneous advice from the Staff Judge Advocate (SJA) to not appeal the NJP

	e.  Arguments:

* Article 31, UCMJ provides Soldiers a basic protection from being unlawfully interrogated by the chain of command which was violated in the applicant's case
* At all times the applicant was considered a suspect of a UCMJ violation
* It was undeniable that the intent of the questioning was for the purpose of disciplinary proceedings
* If a Soldier chooses to waive their Article 31 rights, such waiver must be knowing and intelligent
* The rights waiver document did not state the offenses he was suspected of, his decision to waive those rights was not knowing and  intelligent, and the information extracted should not have been used against him
* The applicant did not know of the ammunition in the SSG's black bag
* The applicant gave orders to his experienced team to search their belongings in order to be prepared for the customs inspection
* The applicant acted reasonably
* Dereliction of duty cannot be found for failing to properly account and store ammunition, the existence of which was only detected after three passes through an X-ray device
* At the time of the incident, there was no duty requirement for team leaders to search team member's bags and no evidence that the chain of command subsequently desired such duty requirement
* The applicant cannot be guilty of dereliction for failing to self-report his own behavior or activity that formed the basis for two other UCMJ offenses
* The entire conduct of the AR 15-6 investigation supports the conclusion that the applicant's brigade had a predetermined result they wanted from the report
* The brigade was surprised and annoyed by the incident and wanted accountability regardless of fairness or legal culpability
* The applicant was advised by the SJA that if he appealed the NJP it would be decided by the next higher command and he would face a General Officer Memorandum of Reprimand (GOMOR)
* The SJA violated U.S. Army Judge Advocate General ethical rules as well as his state bar rules by discussing and advising on a disciplinary matter with the accused member and should be reported accordingly

3.  Counsel provides no additional documents.

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant was appointed a second lieutenant on 
20 December 2002 and entered active duty 1 January 2003.  He was promoted to captain with an effective date and date of rank of 1 March 2006.

2.  On 20 November 2009, the applicant was assigned for duty as a Civil Affairs Special Operations Officer with Company D, 96th Civil Affairs Battalion, Fort Bragg, NC.

3.  In May 2010, the applicant was assigned for duty as a civil affairs special operations officer in Tajikistan during the period 19 May to 30 November 2010.

4.  On 10 January 2011, he was returned to Fort Bragg, NC for assignment with his previous unit as an assistant civil affairs officer.

5.  A DA Form 3975 (Military Police Report), dated 7 February 2011, was sent by the Director of Emergency Services, Wiesbaden Army Airfield, Federal Republic of Germany to the Commander, 96th Civil Affairs Battalion, Fort Bragg, NC.  The report concerned the SSG's incident at the Frankfurt International Airport as discussed above.  The report stated the SSG failed to obey a general order and had unlawful possession of items imported in his baggage.  The items were two magazines each with 15 rounds of 9 millimeter ammunition.

6.  A memorandum, subject: Appointment of Commander's Inquiry Officer, dated 22 March 2011, appointed a captain from Company A, 96th Civil Affairs Battalion, to perform an investigation of the circumstances surrounding the transportation of ammunition and failure to notify the chain of command.  He was directed to submit his findings no later than 5 April 2011.  Any delay required a written explanation.

7.  The applicant signed a DA Form 3881, dated 25 March 2011, indicating that he understood he did not have to answer any question or say anything.  His signature also indicates that he understood whatever he might say could be used against him in a criminal trial.  He also had the right to stop answering questions at any time, or to speak privately with a lawyer before answering further, even after signing a waiver.

8.  On 25 March 2011, the applicant responded to thirteen questions on the DA Form 2823.  The questions were related to his redeployment itinerary, bag checks, customs procedures, the discovery of the ammunition found at the Frankfurt International Airport, and when he reported the incident to his chain of command.

9.  A memorandum, subject: AR 15-6 Findings and Recommendations, dated 
26 April 2011, states the IO was required to investigate a situation involving the transportation of hollow point ammunition and the failure to notify the chain of command about the incident.  The subjects of the investigation consisted of the applicant who was a captain and an SSG.  They were redeploying to Fort Bragg, NC.  The SSG had the ammunition in his bag.  The IO's findings and recommendations included the following:

	a.  Findings:

* During CAT 642's deployment, ammunition accountability and storage procedures were inadequate
* Ammunition was stored in a locked tool box instead of at the embassy as required by Force Protection Protocol
* Ammunition transfer from CAT to CAT and from embassy to CAT was not in accordance with Army regulations for ammunition handling, storage and safety
* CAT 642 was never given a specific exemption to purchase, obtain, or employ hollow point bullets
* Only the applicant, the two noncommissioned officers with him, and the customs officials at the Frankfurt International Airport knew about the incident until the Commander, Company D, 96th Civil Affairs Battalion was contacted in January 2011 by the authorities in Germany

	b.  The IO recommended the applicant receive a GOMOR for failing to:

* Recognize the importance of the incident
* Report the incident to his chain of command
* Ensure that proper inspections of bags were conducted

10.  A memorandum, dated 9 May 2011, states a major assigned to Company E, 96th Civil Affairs Battalion, was tasked to perform a field grade review of the IO's findings and recommendations concerning the commander's inquiry about the incident at the Frankfurt International Airport.

	a.  The review was to give special consideration to the following two elements of the investigation:

* The question of whether team leadership met their responsibility to brief team members on customs requirements
* The question of whether the team leader had the ability to notify his higher headquarters immediately after the incident

	b.  The major reviewed the AR 15-6 Investigation Report and concurred with the findings and recommendations, commenting that the IO's findings revealed a very thorough and methodical investigation.

	c.  Concerning the first question, the major determined the applicant and the sergeant first class had only briefed their team on shipping customs requirements.  They failed to prepare for airport customs requirements and did not check their Soldiers.

	d.  Concerning the second question, the major determined that the applicant could feasibly have called his higher headquarters immediately after the incident.  This was based on the applicant's statement that there was a period of 
40 minutes from the time the Soldier was detained and his flight was scheduled to depart.  If the applicant had truly feared that making a phone call during this period would have caused them to miss their flight, he should have reported the incident as soon as he returned to the United States.  The major concluded that the applicant did not report the incident because he thought his higher headquarters would never learn about it.  It appeared that his actions were motivated solely by a desire to escape censure, not a consideration of possible second and third orders of effect.

11.  On 10 May 2011, the Judge Advocate General conducted a legal review of the AR 15-6, dated 26 April 2011, and found that it was legally sufficient in that:

	a.  the proceedings complied with legal requirements;

	b.  there were no substantial errors in the report of investigation;

	c.  there was sufficient evidence to support the IO's findings; and

	d.  the recommendations were consistent with the findings.

12.  On 10 May 2011, the appropriate authority approved the AR 15-6 Findings and Recommendations.

13.  On 13 June 2011, the applicant was informed by his battalion commander that he was being considered for NJP for dereliction of duty in that he failed to report the loss of ammunition, failed to account for and to properly store ammunition, and to search his team's bags for contraband.

14.  On 15 June 2011, the applicant indicated that he had the opportunity to consult with counsel and that he understood his rights as listed on the DA Form 2627.  He initialed the form indicating that he did not demand trial by court-martial and that he had attached matters in defense, extenuation, and/or mitigation, and that a person would speak on his behalf.  He requested a closed hearing.

15.  On 15 June 2011, the applicant accepted NJP consisting of an oral admonishment.  The imposing commander directed filing of the original DA Form 2627 in the restricted folder of his OMPF.  The applicant elected not to appeal his punishment.

16.  On 31 March 2012, the applicant was discharged.  He accepted a U.S. Army Reserve appointment.  On 30 May 2014, he was promoted to major.

17.  A review of the letters of support provided with this case revealed that each author had personal knowledge of the applicant and spoke highly of his character and professional ability as a leader.  However, none of the authors indicated that they were in a position of leadership over the applicant or had specific knowledge of his exact duties and responsibilities as the leader of CAT 642.

18.  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.  Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  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.  It further states:

	a.  The imposing commander will ensure that the Soldier is notified of the commander’s intention to dispose of the matter under the provisions of Article 15, UCMJ.  The Soldier will also be notified of the maximum punishment that the commander could impose under Article 15, UCMJ.  The Soldier will be provided a copy of DA Form 2627 with items 1 and 2 completed, including the date and signature of the imposing commander.  The Soldier will be provided a copy of supporting documents and statements for use during the proceedings.  The Soldier will return the copy to the commander for annotation.  It will be given to the Soldier for retention when all proceedings are completed.

	b.  The Soldier will be informed that he has the right to remain silent.  The Soldier is not required to make any statement regarding the offense or offenses of which the Soldier is suspected.  The Soldier will be informed that any statement he may make can be used against him in the Article 15 proceedings or in any other proceedings including a trial by court-martial.

	c.  The Soldier will be informed of his right to consult with counsel and the location of counsel.

	d.  The imposing commander must be convinced beyond a reasonable doubt that the Soldier committed the offense(s).  The hearing will consist of the following:

* Consideration of evidence, written or oral, against the Soldier
* Examination of available evidence by the Soldier
* Presentation by the Soldier of testimony of available witnesses or other matters, in defense, extenuation, and/or mitigation
* Determination of guilt or innocence by the imposing commander

	e.  A commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF 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.

	f.  The setting aside of an NJP and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges or property affected by the portion of the punishment set aside are restored.

	g.  NJP is wholly set aside when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual.

	h.  The basis for any set aside action is a determination that, under all of the circumstances of the case, the punishment has resulted in a clear injustice.

19.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.

	a.  It identifies those documents that are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted.  It shows the DA Form 2627 is filed in either the performance or restricted section of the OMPF as directed in item 4b of the DA Form 2627.

	b.  It provides that the restricted folder of the OMPF 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 folder of the OMPF 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 OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by setting aside his NJP and removing it from his OMPF.  He bases his request on a belief that his chain of command:

	a.  failed to adhere to the requirements of Article 31, UCMJ concerning his rights against self-incrimination;

	b.  failed to establish the perquisite duties he allegedly negligently performed relating to his handling of the ammunition incident at Frankfurt International Airport;

	c.  violated his Fifth Amendment right of self-incrimination by punishing him for not self-reporting the loss of ammunition; and

	d.  used unlawful command influence by requiring the IO to amend his 
AR 15-6 Investigation Report on at least two separate occasions until the proper "command" conclusion was reached.

2.  The evidence of record confirms the applicant accepted NJP for dereliction of duty concerning his failure to report the loss of the ammunition, to account and properly store ammunition, and to search his team member's bags for contraband.

3.  The available evidence shows the NJP proceedings were conducted in accordance with law and regulation and that his NJP is properly filed in the restricted folder of his OMPF as directed by the imposing commander.  There is no evidence of record and he provides none to show the DA Form 2627 is untrue or unjust.  Therefore, there is no basis for setting aside the NJP.

4.  The applicant's contention that his rights under Article 31 and the Fifth Amendment of the Constitution are found to be without merit.  The available documents clearly show he was informed of his rights and always had the option to stay silent and/or to demand trial by court-martial.

5.  The applicant's contention that the commander failed to exercise his legal obligation to establish the origin of the duties the applicant had violated is not sufficiently proved by the available evidence.  The applicant's argument that there was no documentation clearly stating he was responsible for accountability and storage of the unit's ammunition and subsequent reporting of any loss does not mean he was not accordingly responsible.  This also extends to the applicant's responsibility to ensure his Soldiers understood the transporting of ammunition and the customs procedures at the airport.  The applicant had an inherent responsibility to ensure compliance by all of his Soldiers and to report to his chain of command as soon as practical when any infraction occurred, especially when it involved the transportation and loss of unauthorized ammunition.

6.  A review of the letters of support provided by the applicant failed to provide convincing evidence that the applicant's NJP may have been in error or unjust.

7.  In view of the above, the applicants request should be denied.

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)                                         AR20140006812



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ABCMR Record of Proceedings (cont)                                         AR20140006812



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