IN THE CASE OF:	  

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140010178 


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 his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) and all allied documents be removed from his official military personnel file (OMPF).

2.  He states the special court-martial convening authority did not properly consider the evidence and the weight of the evidence was contrary to the convening authority's finding of guilty.  He adds the basic allowance for housing (BAH) overpayment was the result of a finance technician's error and he took all reasonable steps necessary to remedy the overpayment of BAH and parachute pay.  He defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests permanent removal of the applicant's Article 15 or, as an alternative, removal of the findings of guilt concerning the following misconduct:

	a.  "In that you did, at or near Bamberg, Germany, on divers occasions between on or about 21 November 2011 and on or about 1 March 2013, wrongfully appropriate BAH, military property, of a value or more than $500.00, the property of the United States Government.  This is in violation of Article 121, UCMJ."

	b.  "In that you did, at or near Bamberg, Germany, on divers occasions between on or about 11 May 2012 and on or about 1 March 2013, wrongfully appropriate parachute pay, military property, of a value or more than $500.00, the property of the United States Government.  This is in violation of Article 121, UCMJ."

2.  Counsel states the facts of this case clearly indicate the applicant did not wrongfully appropriate either BAH or parachute pay as the applicant took all steps reasonably necessary to inform his command and finance about the discrepancies.  Counsel further states:

   a.  The applicant started receiving parachute pay with his assignment to the 173d Special Troops Battalion (STB), an airborne unit in Germany, in February 2011.  At the time, the applicant was not married and was not receiving BAH.  He married his wife on 15 June 2011 and she was enrolled into the Defense Enrollment Eligibility Reporting System as a military spouse.  The applicant returned to Germany and his spouse remained in Atlanta, GA, where she was collecting BAH.  

	b.  In November 2011, the applicant's spouse moved to Germany prior to being command sponsored.  However, in November/December she was command sponsored and the applicant coordinated with finance in early December 2011 to ensure he was receiving the proper allotments given his spouse relocation.  On 5 December 2011, he changed his allotment to reflect their Germany residence and stopped BAH and he and his spouse were to receive Overseas Housing Allowance (OHA).  However, on 6 December 2011, BAH allotments for Atlanta, GA were erroneously reinitiated by a finance technician.  

   c.  In February 2012, noticing that his Defense Finance and Accounting Service (DFAS) Leave and Earnings Statement (LES) allotment seemed high, the applicant addressed this issue with his finance office.  He was told that his allotments were fine.  In May 2012, he was promoted to staff sergeant (SSG)/E-6 and transferred from his airborne unit to a military police (MP) company.  Since he was no longer in an airborne unit, he now was ineligible for parachute pay.  Recognizing this, the applicant took immediate steps to terminate the additional pay, but was told he needed orders from his previous unit which was deployed at the time.  Therefore, the applicant waited until the unit returned from deployment and saved the parachute pay until the issue could be resolved.
   
   d.  On 7 June 2013, the applicant was informed of the charges against him for two specifications for theft of BAH and parachute pay.  In exchange for the offer to plead guilty, the special court-martial convening authority referred his case to a field grade Article 15.  On 19 August 2013, the applicant was given an Article 15 despite providing the imposing authority with extenuating and mitigating statements in his defense. 
3.  Counsel provides:

* Applicant memorandum, Subject:  Matters in Defense, Extenuation, and Mitigation, dated 19 August 2013
* Letter of support, dated 5 June 2013
* U.S. Army Human Resources Command (HRC) memoranda, Subject: Remission or Cancellation of Indebtedness, dated 21 and 22 June 2014
* DD Form 214 (Certificate or Release or Discharge from Active Duty)
* DA Form 2627
* U.S. Army Criminal Investigation Command (CID) Report
* Bamberg Finance Customer Support Team (FCST), Sign-in Roster
* DA Form 1351-2 (Travel Voucher or Subvoucher), dated 17 February 2011
* Orders 348-177, dated 14 December 2010
* Memorandum, Subject:  Policy Letter 15, Annual Entitlement Verification, dated 1 February 2012
* Orders 041-031, dated 10 Feb 2011
* Change of Tour message
* Memorandum, Subject:  Request for Command Sponsorship, dated
6 December 2011
* Rental Agreement
* In-processing Questionnaire
* Duty Position
* DA Form 31 (Request and Authority for Leave)
* BAH roster
* DA Form 93 (Record of Emergency Data)
* Servicemembers' Group Life Insurance Election and Certificate
* Enlisted Record Briefs (ERB)
* DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters, and/or Variable Housing Allowance), dated 1 March 2013
* DD Forms 2367 (Individual OHA Report), dated 9 and 15 December 2011
* Numerous diplomas, awards, promotions and/or certificates of training/achievement/appreciation/participation

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 August 2004.  He served in Iraq from 28 April 2005 to 2 January 2006 and 14 December 2007 to 7 March 2009.  He also served in Haiti from 14 January to 15 March 2010.


2.  On 28 February 2013, a CID investigation was initiated on the applicant for making a false statement, larceny of Government funds, and fraud.  The investigation was initiated when the applicant's platoon leader reported that the applicant was receiving BAH entitlement for which he was not authorized.  The CID investigator took numerous statements and reviewed numerous documents and established probable cause to believe the applicant committed the offense of fraud, larceny of Government property, false official statement, and BAH fraud when he knowingly received BAH entitlement for which he was not authorized and converted the amounts received to personal use.  This determination was made from the following pertinent statements and/or documents provided:

   a.  On 24 May 2012, the applicant was released from the 173d STB and reassigned to the 709th MP Battalion.
   
   b.  LESs showing the applicant received parachute pay effective 10 February 2011 through 28 February 2013.
   
   c.  LESs showing the applicant received BAH at the "with" dependent rate based on zip code 30350 (indicating Atlanta, GA) effective 15 June 2011 through 28 February 2013. 

	d.  A statement from the applicant's platoon leader stating that the applicant received BAH entitlement while his spouse had been living with him in Germany since June or July 2011.

	e.  A statement from the finance technician lead stating that the applicant had received BAH entitlement from 1 January to 31 April 2012 at the rate of $1,148.70; 1 May to 31 December 2012 at the rate of $1,382.70; and 1 January 2013 to present (12 March 2013) at the rate of $1,457.70.  The total amount was $20,029.50.  She further stated that on 6 March 2013 the applicant signed a BAH certification document stating that his wife was living with him in Germany.  His spouse had been living in Germany since November 2011.  She also said there was no record of the applicant attempting to correct the overpayment.

	f.  In the applicant's statement he said his command sponsorship was signed on 5 December 2011 and he provided the housing office with a copy of the sponsorship and other documents per their request.  He then went to the Bamberg finance office and provided them with a copy of his lease agreement and requested that his BAH be "turned off," but for some reason it was turned on the next day (6 December 2011).  He also states that sometime in February 2012, he went to finance with his LES and relayed that he was receiving a lot of money.  However, he was told by finance personnel that he was receiving the correct amount of BAH.
	g.  In a statement, the Chief, Bamberg FCST said prior to having knowledge of the applicant's CID case, transactions were input to correct the inaccuracies in the Defense Military System - Active Component.  Corrections were done to the unauthorized collection of BAH for the states and correction of the OHA from "without" to "with" dependent rate since the applicant's spouse was with him in Germany.

3.  On 19 August 2013, while in the rank/grade of SSG/E-6, nonjudicial punishment (NJP) was imposed against him for the below listed offenses.  

   a.  Behaving himself with disrespect toward a first lieutenant, his superior commissioned officer on 26 February 2013.
   
   b.  Wrongfully appropriating BAH on divers occasions between on or about 21 November 2011 and on or about 1 March 2013, a value of more than $500.00.
   
   c.  Wrongfully appropriating parachute pay on divers occasions between on or about 11 May 2012 and on or about 1 March 2013, a value of more than $500.00.

4.  Item 3 (Having been afforded the opportunity to consult with counsel and understanding my rights listed above and on page three of this form, my decisions are as follows):  the applicant initialed "I do not demand trial by court-martial" and "Matters in defense, extenuation, and/or mitigation are attached."  In his statement, dated 19 August 2013, he said:

* He made a grievous mistake and was disrespectful to a commissioned officer
* He demonstrated negligence by not ensuring he was receiving the correct entitlements each paycheck
* He should have been more aggressive in pursuing a solution to stop receiving parachute pay
* He never attempted to mislead anyone and was honest and upfront about his wife's residence in Germany
* The Chief of Finance, Bamberg, stated the error which caused him to be overpaid was due to a clerical mistake within the internal finance system 
* Although he was negligent in not getting the issue resolved sooner, his actions do not suggest he was deceitful, dishonest, or greedy
* He was fully aware that he was receiving parachute pay and initially took steps to terminate the pay
* Finance was unable to stop parachute pay and directed him to work with his former unit
* His former unit was deployed and the information he was receiving from the Rear Detachment concerning issuing orders to stop his parachute pay was incorrect
* He was told he could not stop receiving hazard duty pay without revocation of his "P" parachutist additional skill identifier
* In frustration, he decided to wait until the 173d STB returned from deployment
* He kept enough money to cover the repayment

5.  The commander directed the DA Form 2627 be filed in the performance section of his OMPF.  The applicant initialed the block indicating that he was "Guilty of all Specifications" and "do not appeal."  Block 10 (Allied Documents and/or Comments) of his DA Form 2627 lists the MP/CID Report and his ERB.

6.  The applicant's record is void of a DA Form 5960 prior to 1 March 2013.

7.  The applicant provided a memorandum from the Chief, Bamberg FCST that is not contained in the 93-page Article 15 and allied documents contained in his OMPF.  In the memorandum, the chief stated finance was brought into the loop for checking if the applicant had submitted or requested BAH for his spouse illegally.  He said the documents from DFAS indicated that the applicant had correctly annotated that his spouse was in Germany in 2011.  The documents were received and processed to stop the applicant's BAH and start his OHA.  However, the input was made using the incorrect code and the transactions were rejected.  The finance clerk recoded the transaction and presumed the inputs were done correctly.  The applicant clearly stated on his DA Form 5960 that his dependents were with him; based on this information he did not try to commit fraud.

8.  The applicant provided numerous diplomas, awards, promotions and/or certificates of training/achievement/appreciation/participation that show he was a good Soldier.  His record verifies that he was wounded in action and was awarded the Purple Heart.  He also received several awards  

9.  On 21 January 2014, HRC notified the applicant that his application for remission or cancellation of indebtedness in the amount of $15,125.70 was review and approved.  The representative further stated that if the remitted monies were found at a later date to be public funds that were obtained or converted to own use through fraud, larceny, embezzlement, or any other unlawful means, the debt would be reinstated.

10.  On 22 January 2014, HRC rescinded and disapproved the above memorandum.  The agency stated the documents contained in the applicant's record indicates he received NJP in August 2013, and that one of the charges he plead guilty to was to the wrongful appropriation of BAH while in Germany.  Therefore, in accordance with Army Regulation 600-4 (Remission or Cancellation of Indebtedness), paragraph 1-8, indebtedness associated with an Article 15 may not be remitted or cancelled.

11.  On 27 February 2014, the applicant was honorably discharged and then entered the U.S. Army Reserve.  He was credited with completing 
9 years, 6 months, and 4 days of active duty service. 

12.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual official personnel files.  The regulation 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.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Claims that an Article 15 is unjust will be adjudicated by the Army Board for Correction of Military Records (ABCMR).

13.  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 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.  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 3-6 addresses filing of NJP and provides that 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.

	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF 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.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

14.  Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the OMPF. Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or the interactive Personnel Electronic Records Management System.  Table B-1 states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4b or 5 of DA Form 2627.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant violated the UCMJ while serving as a SSG and subsequently accepted NJP on 19 August 2013.  The imposing commander directed filing the Article 15 in the performance section of his OMPF; the applicant initialed the block indicating that he was guilty of all specifications and elected not to appeal. 

2.  The applicant and his counsel now argue that he did not wrongfully appropriate either BAH or parachute pay and took all steps reasonably necessary to inform his command and finance about the discrepancies.  However, their claim is not supported by the available evidence.  Notwithstanding the memorandum provided by the Chief, Bamberg FCST that a DA Form 5960 indicated the applicant did not commit fraud, he failed to provide a copy of that form.  Additionally, neither a copy of the chief's memorandum nor the
DA Form 5960 was provided as part of the CID investigation or as extenuating and/or mitigating evidence in support of his defense even though the memorandum was dated 5 June 2013, prior to the applicant accepting the Article 15.  Further, the finance technician lead said that there was no record of the applicant attempting to correct the overpayment.

3.  Moreover, the ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the 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, was given the right to demand a trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through proper channels.  He elected not to appeal his Article 15 to the next higher commander. 

4.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the performance section of his OMPF as directed by the imposing commander.  There is no evidence of record and he and his counsel did not provide any evidence to show the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  

5.  The applicant's continued service to our nation, his awards and decorations, and his combat tours are noted.  However, the fact remains that he violated the UCMJ and he was punished for it.  

6.  In view of the foregoing, he is not entitled to 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)                                         AR20140010178



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ABCMR Record of Proceedings (cont)                                         AR20140010178



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