BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20140018084 


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 removal or transfer of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), dated 8 October 2011; letter of reprimand (LOR), dated 22 October 2011; and referred Officer Evaluation Report (OER) that are filed in the performance section of his Official Military Personnel File (OMPF).

2.  The applicant states:

     a.  The referred OER contains erroneous information.  In particular, in the performance and potential evaluation section the rater noted that he refused to return to his unit as ordered; however, he returned as soon as possible.  This is evident by the time line he provided that shows he was ready to return to his unit the day after being notified that there was an issue with his departure.  He reported twice a day from 26 July to 8 August 2011 to receive a flight back but he was not manifested until 9 August 2011 by the Fort Hood Mobilization Brigade.  

     b.  The OER states that he made false statements to a Congressman and a Senator which is erroneous.  His OER did not take into account his performance upon returning to theater and working in the "AMR" cell.  The Article 15 asserted that he willfully disobeyed MAJ TB by not returning to Contingency Operating Base (COB) Speicher immediately; however, he made every attempt to return to COB Speicher after realizing there was an issue with his departure.

   c.  He left COB Speicher on 19 July 2011 because he believed that he was cleared to do so.  He had completed the deployment cycle support (DCS) paperwork, handed in his weapon and sensitive items, and said goodbye to his commander.  He arrived in Kuwait the same day.  On 21 July 2011 he departed Kuwait and arrived at Dallas-Fort Worth, Texas on 22 July 2011.  On 23 July 2011, he was notified that he should not have left Iraq.  The Fort Hood Mobilization Brigade was not able to manifest him on a return flight to Iraq for two weeks.

     d.  He feels deep remorse that the miscommunication could have been avoided if he had also said goodbye to his battalion commander.  At no time did he willfully disobey the orders of his superior officers.  The items he has requested to be removed are factually wrong and do not represent his true mindset at that time.

     e.  He feels no ill will toward anyone involved in the matter.  He would have likely acted in a similar manner in the same situation.  He merely wants the record to be corrected to show that his mindset was not one of willful disobedience, but one of belief that he was authorized by his commanders to leave Iraq.

3.  The applicant provides:

* Army Discharge Review Board decision
* two DA Forms 67-9
* five DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) 
* five character reference letters 
* self-authored time line of events
* DA Form 7631 (DCS Checklist)

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.  After having prior enlisted service in the Regular Army as a signal intelligence analyst, the applicant was appointed as a Reserve commissioned officer on 1 October 2007 and executed an oath of office on 15 November 2007.

3.  Orders HO-034-0010, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX, dated 3 February 2011, show he deployed in support of Operation New Dawn to Iraq.

4.  A DD Form 368 (Request for Conditional Release), shows he requested a conditional release from the Army Reserve on 7 May 2011.

5.  A memorandum for record (MFR), issued by Headquarters, 11th Aviation Command, Fort Knox, KY, dated 27 June 2011, shows his request for conditional release into the Air National Guard was approved.  

6.  He completed a Deployment Cycle Support Checklist on 10 July 2011 in Iraq prior to his departure and intent to demobilize. 

7.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 23 July 2011, shows that favorable personnel actions for him were suspended due to adverse action.

8.  On 8 October 2011, while holding the rank of CPT, he was advised that the Commanding General, Headquarters, 25th Infantry Division was considering imposing nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ against him for:

* failing to obey a lawful order by leaving theater without an amendment to his orders on or about 19 July 2011
* failing to be at his appointed place of duty between 19 July 2011 and 22 July 2011 at COB Speicher, Iraq
* wrongfully and dishonorably misrepresenting to various military and civilian personnel that he was a lawfully redeploying service member and that he was authorized to demobilize from active duty and that he had satisfied his service obligation on diverse occasions between 19 July 2011 and 11 August 2011

9.  In a memorandum for record, subject:  Response to Nonjudical Proceedings, submitted by the applicant to the Commanding General, 25th Infantry Division, dated 11 October 2011, he states:

     a.  He understood that he made some mistakes at the end of his most recent deployment.  He should have obtained more clarity before executing what he thought was the correct course of action.  He received guidance and instructions from his superiors and followed their guidance or instructions without asking questions.  In the past his ability and willingness to follow orders had always been viewed highly by his superiors.  He realized that by asking more questions he would have avoided the entire situation.   His goal from the beginning of his career, and which continued to that day, was to serve his country to the best of his ability.

     b.  He never intended to deceive anyone with regard to redeploying and genuinely believed that he was authorized to redeploy.  He and his company commander received what they both believed to be proper legal advice from the Judge Advocate General (JAG) on COB Speicher which indicated that the signed DD Form 368 from his Continental United States (CONUS) commanding general constituted a letter of release from theater and which canceled the amendment extending his orders until December or overrode the need for a separate amendment curtailing his tour.  He was told by his battalion commander that he wished that he would stay until December and perform his duties as a pilot in command.  As he understood the circumstances he had the support of both his immediate command in theater as well as in CONUS for him to separate from the Army Reserve and accept a slot with the Wisconsin Air National Guard.  

     c.  When he was told to return to COB Speicher he immediately returned as fast as he was allowed by the Fort Hood Mobilization Brigade.  It took about three weeks before they could get him on a return flight to Kuwait.  His shortcoming was assuming the paperwork he had in hand and advice he received was sufficient under the circumstances.

    d.  He volunteered for that deployment because he loved his job and wished to support his Reserve unit at Fort McCoy and his country.  He believed his service to his unit and the Army had been exemplary.  He believes his selection for a flying slot with the Air Guard would have enabled him to continue his positive contributions in that service.  He has a wife and four daughters that he supports and hoped that the unfortunate series of events would not harm his ability to continue that support.

10.  On 19 October 2011 at a closed hearing he declined trial by a court-martial.  He was found guilty of and accepted NJP for all offenses cited in paragraph 8.  His punishment consisted of a forfeiture of $2,808.00 pay per month for 2 months (suspended) and a written reprimand.  The imposing officer ordered the Article 15 filed in the performance folder of his OMPF.  The applicant elected not to appeal his punishment. 

11.  On 22 October 2011, the Commanding General, Headquarters, 25th Infantry Division and U.S. Division Center, Camp Liberty, Iraq reprimanded him for his misconduct.   The reprimand stated:

     a.  The applicant attempted to secure his release from theater despite his commander’s direction that he would stay in theater until his orders were amended.  He left his place of duty, took his conditional release from the Army Reserve, and manifested himself on a flight back to the U.S.  He then began his redeployment and reintegration efforts.  After being ordered to stay with his escorts and immediately return to theater, he flew home to Wisconsin without authority.

     b.  The applicant?s conduct was inexcusable.  As a commissioned officer he failed every measure of trust afforded him as a leader.  Rather than exercise patience and demonstrate his faith in his leadership he left his unit on his own accord and attempted to transfer himself to the Wisconsin Air National Guard.  As a pilot whose skills were mission critical, he knew exactly how his actions could have impacted the efficiency of his aviation brigade.  His personal choices jeopardized the safety and security of his fellow pilots by shifting his mission requirements to them without allowing for adequate planning and preparation from his leadership.

     c.  The commanding general expected that in the future the applicant would execute his assigned duties within the U.S. Division Center with the highest possible degree of professionalism.  He had lost his trust, the trust of his unit, and the trust of Soldiers who once looked up to him as their leader.  His selfish and immature actions severely impacted the mission capability of the 77th Theater Aviation Brigade and he held him personally responsible for the impact it had on morale and discipline.

      d.  The memorandum was imposed as punishment under the provisions of Article 15, UCMJ.  It was to be filed in conjunction with the corresponding record of proceedings under the Article 15.

12.  He received a referred OER which covered 10 months of rated time from 17 January 2011 through 10 November 2011 for his duties as Aviation Platoon Leader.  His rater was Major (MAJ) THB, the Company Commander, and his senior rater was Lieutenant Colonel (LTC) JMT, the Battalion Commander.  MAJ THB digitally signed the OER on 31 October 2011 and the senior rater digitally signed the OER on the same day.  The OER contains the following entries:

	a.  In Part IVa (Army Values), the rater marked the "no" box for "Honor,"  "Integrity," "Selfless-Service," and "Duty."

	b.  In Part IVb (Leader Attributes/Skills/Actions), the rater marked the "no" box for "Mental,"  "Conceptual," "Decision-Making" and "Building."

	c.  In Part V (Performance and Potential Evaluation), his rater marked the box for "Unsatisfactory Performance, Do Not Promote."  The rater entered the following comments:
	
[Applicant’s] performance during this rating period showed much potential however, ended very disappointingly.  [The applicant] attained Pilot in Command within 10 months of graduating from flight school.  He accumulated over 300 incident and accident free flight hours while conducting over 100 combat missions.  [The applicant] maintained 100 percent accountability of all equipment, maintained his ground vehicles to a 90 percent readiness rate and scored a 289 on his APFT [Army Physical Fitness Test].  After this promising start, [the applicant] then made very bad decisions that will have lasting effects well beyond this OER.  Without authorization, [the applicant] departed the CENTCOM [Central Command] Theater of Operation.  Upon discovery of his departure he was ordered to immediately return to his unit which he refused to do.  [The applicant] then made false statements in regards to his unauthorized departure to a Congressman and Senator through the congressional complaint process.  His lack of good judgment, selfish actions, and willingness to falsify his statements in pursuit of his own agenda are not in keeping with the Army standard and are not the actions expected of any Soldier in the U.S. military.  [The applicant’s] decisions will have a negative impact on his career.  As his rater I could not be more disappointed in an officer that showed much promise in the beginning.  

	d.  In Part VII, his senior rater marked the box for "Do Not Promote" and entered the following comments:

[The applicant’s] performance was well below the minimum that I would expect from an officer or Soldier of any rank.  He showed incredibly poor judgment when he disobeyed a direct order and left his unit in a combat zone without authorization.  His behavior was incredibly selfish.  He thought only of himself and totally disregarded the platoon that he was tasked to lead and the unit that depended on him.  It is clear that he does not share the values our service depends on such as honor, integrity, duty, and selfless-service.  [The applicant] should be discharged at the earliest opportunity and should not be placed in positions of responsibility.

13.  On 5 November 2011, the applicant signed the referred OER and indicated he would submit comments.

14.  On 5 November 2011, he submitted a written response wherein he stated:

	a.  The OER did not accurately reflect his values and attributes.  He served the Army with honor and integrity for the last 11 years including the period covered in the referred OER.  He deeply regretted the miscommunication and decisions in July that led to the referred report and desired more than anything to continue to serve his country.  He knew that he possessed the skills and determination needed to continue to perform at a high level as an officer and a leader given the chance.  An example of his performance was acknowledged in a letter written by his supervisor which was attached.

     b.  The actions that had precipitated the referred report were the extreme rarity and not the norm of his military career or of the rating period.  As per Army Regulation 600-8-24, a separation should not be the result of an isolated incident.  He truly felt that is was a privilege and an honor to serve.  He loved his job as an officer more than words could express.  He would continue to accomplish whatever task that was asked of him to a high degree and take care of the needs of all Soldiers.  He asked that his entire performance during the rated period be taken into consideration and that he be shown leniency.

15.  He provides an unsigned copy of a DA Form 67-9 for a rating period that started on 17 January 2011 and ended on 24 July 2011.  The rater and senior rater are the two officers shown on his aforementioned referred OER.

16.  To support his previous duty performance as an officer and NCO, the application provided the following six evaluations that show he met or exceeded performance standards expected of his rank and its associated duty position.  He was recommended for promotion, determined to be the best qualified and rated superior by his senior raters.

* OER from 14 August 2010 thru 16 January 2010 as a platoon leader
* NCOER from 1 July 2006 thru 31 May 2007 as an executive officer
* NCOER from 7 May 2005 thru June 2006 as a platoon sergeant
* NCOER from November 2004 thru June 2006 as a cryptologic support team analyst
* NCOER from June 2004 thru November 2004 as a senior signals intelligence language analyst and squad leader
* NCOER June 2003 thru June 2004 as a senior signals intelligence language analyst and squad leader

17.  In addition, the applicant provided five character references letters from warrant officers, field grade officers, and senior Department of the Army Civilians.  A synopsis of the letters shows:

* he has a strong work ethic 
* he has sound leadership abilities
* he is a dedicated Army aviator
* he is loyal to his chain of command
* he pays strict attention to detail
* he provides positive energy to the work group 
* he mentors his Soldiers and junior officers and looks out for their best interest
* he is a valuable personnel asset to any unit or command
* he should be retained and allowed to continue serving as an officer

18.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.

	a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.

	b.  Depending on the purpose, documents will be filed in the OMPF in one of the three sections:  performance, service, or restricted.  It shows:

* DA Form 2627 is filed in either the performance or restricted section, as directed in item 4b of the DA Form 2627
* if the form shows punishment of a written LOR, then file the written LOR with the DA Form 2627
* allied documents to the NJP are filed in the restricted section

     c.  Documents will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Appendix B states the DA Form 67-9 is filed in the performance section of the OMPF.

19.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	a.  Paragraph 1-4 states OERs are prepared by the rating officials designated in the published rating scheme.  Rating chains correspond as nearly as practical to the chain of command or chain of supervision in a timely manner.  Pooling, or elevating the rating chain beyond the senior rater’s ability to have adequate knowledge of each Soldier’s performance and potential, in order to provide an elevated assessment protection for a specific group, runs counter to the intent of the evaluations.

	b.  Paragraph 3-36 states an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests for modifications to evaluation reports already posted to a Soldier’s OMPF require use of the Evaluation Report Redress Program.

20.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	a.  Chapter 7 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.

	b.  Paragraph 7-2 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 19 October 2011; LOR, dated 22 October 2011; and DA Form 67-9 for the period 17 January 20011 to 10 November 2011, should be removed from his OMPF. 

2.  The evidence shows that NJP was imposed against him for offenses that occurred on or about 11 July 2011.  He consulted with a defense counsel prior to his hearing and elected not to exercise his right to demand trial by court-martial.  His commanding general considered the evidence, the applicant’s rebuttal statement and found the applicant guilty.

3.  He did not appeal the NJP imposed by the CG, Headquarters, 25th Infantry Division, on 8 October 2011 and the DA Form 2627 and LOR are properly filed in the performance section of his OMPF as ordered by the CG.

4.  By regulation, in order to remove a record from the OMPF, there must be compelling evidence to support its removal.  

5.  After a careful review of the evidence of record, it is concluded he has not submitted compelling evidence to support the removal or transfer of the DA Form 2627 that is filed in the performance section of his OMPF.  Therefore, the DA Form 2627, dated 19 October 2011, and LOR, dated 22 October 2011, are deemed to be properly filed and should not be removed or transferred from the applicant's OMPF.

6.  In reference to removal of the contested OER, there is insufficient compelling evidence that shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify its removal or transfer.  As such, there is insufficient evidence to remove or transfer the contested OER from his OMPF.

7.  While the applicant provided copies of OERS, NCOERS and character reference letters, these documents support his past history of meeting or exceeding Army standards and performance duty standards.  However, none of these documents rebut, refute, or provide evidence of an injustice concerning the disciplinary action taken by the applicant’s superiors for his misconduct in July 2011.  As a result of the aforementioned conclusions, there is insufficient evidence provided by the applicant that would warrant granting 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)                                         AR20140018084





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ABCMR Record of Proceedings (cont)                                         AR20140018084



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