IN THE CASE OF:	  

		BOARD DATE:	  3 September 2014

		DOCKET NUMBER:  AR20140013292 


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 a DA Form 2627 (Record of Proceedings on Nonjudicial Punishment (NJP) under Article 15) and a General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the record of NJP and GOMOR should be removed from his OMPF due to the legal errors/discrepancies noted by the Trial Defense Service counsel in his rebuttal letter. 

3.  The applicant provides a table of contents listing enclosures provided with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a Regular Army second lieutenant on   12 June 2010.  He completed his training as an armor officer and was transferred to Fort Lewis, Washington.  He was promoted to the rank of first lieutenant on   22 November 2011.

2.  The applicant deployed to Afghanistan with his unit.  He was serving as a Stryker platoon leader on 24 November 2012 when the commanding general notified the applicant that he was considering whether the applicant should be punished under Article 15, Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties for negligently failing to implement the Guardian Angel concept for Soldiers partnered with Afghan National Security Forces and failure to provide or ensure guidance was disseminated to his Soldiers regarding security, sleep schedules and wear of Personal Protective Equipment (PPE).

3.  On 29 November 2012, the applicant elected not to demand trial by court-martial and requested an open hearing.  The applicant’s punishment consisted of a forfeiture of pay of $1,855.00 for 2 months and a written reprimand.  The applicant did not appeal the punishment and the imposing officer directed that the DA Form 2627 and associated documents, which included the GOMOR, be filed in the performance section of his OMPF.  The Record of Proceedings of NJP is currently filed in the performance section of his OMPF and the GOMOR is filed with that form.

4.  The applicant provided a copy of an informal investigation conducted under Army Regulation (AR) 15-6 by the Deputy Commanding General (a brigadier general) beginning on 18 September 2012.  The investigating officer (IO) was tasked to conduct an informal investigation into an insider attack on                   16 September 2012 that resulted in four of the applicant’s Soldiers being killed in action and two being wounded in action.  The IO opined that the applicant failed to properly assess the threat of an insider attack at the observation post (OP).  Additionally, insufficient personnel were on guard at the time of the attack and no Soldier was designated to constantly monitor the Afghan Uniform Police (AUP) to prevent attack in accordance with guardian angel guidance.

5.  On 26 August 2013, a trial defense counsel at the Fort Lewis Field Office submitted a four-page memorandum to the applicant’s squadron commander citing legal errors in the NJP and GOMOR.  He contended that the evidence contained in the  AR 15-6 investigation shows that the applicant was not derelict in the performance of his duties and contended that the NJP and GOMOR should be removed from his records or at least transferred to the Restricted Section of his records.  He also contended that because the imposing officer did not check block 4a of the DA Form 2627, the form was not complete and should be removed from his records.  Additionally, he contended that the applicant’s rights were violated because the IO did not advise him of the nature of the accusations against him before taking a statement from him.  He further stated that the preponderance of evidence does not support the disciplinary action given the applicant.

6.  The applicant provides a four-page statement in which paragraph 9 states “he just wanted to go home and forget everything so I wrote a letter taking full responsibility and plead guilty.”
 
7.  On 12 May 2014, the applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) requesting that the Record of NJP and GOMOR be removed from his OMPF.  On 17 July 2014, officials at the DASEB advised the applicant that the DASEB did not have the authority to remove the Record of NJP from his OMPF and since the GOMOR was part of the NJP and part of the punishment, it also could not be removed by the DASEB.  He was advised to apply to this Board.

8.  Army Regulation 27-10 (Military Justice), in effect at the time, stated in pertinent part, that the decision to file DA Forms 2627 on the performance fiche or the restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander was final and was to be indicated in item 5, DA Form 2627.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual personnel files.  Paragraph 7-2 (Policies and Standards) 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 or that it has served its intended purpose to support transfer from the performance folder to the restricted folder of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and numerous supporting documents were carefully considered.

2.  Notwithstanding defense counsel’s assertion that the NJP contained administrative errors and that the applicant’s rights were violated by the IO, the applicant has failed to show sufficiently convincing evidence that the NJP and GOMOR is unjust or untrue.  This appears to be especially true given he did not demand trial by court-martial.

3.  While it is not the Board’s position to determine whether the applicant was guilty or innocent of the charges against him, the fact remains that four Soldiers were killed and two were wounded while entrusted to his care and it is apparent that the imposing officer (CG) at the time believed that the evidence suggested that the applicant may have been able to prevent or reduce those tragic losses and the applicant was not able to convince him otherwise. 
4.   Therefore, since he has not provided sufficient evidence to show that the NJP and GOMOR were in error or unjust under the circumstances, there appears to be no basis to grant his request.

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)                                         AR20140013292





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ABCMR Record of Proceedings (cont)                                         AR20140013292



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