IN THE CASE OF:    

		BOARD DATE:  22 January 2015	  

		DOCKET NUMBER:  AR20140020458 


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 of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 15 April 2005, from the restricted folder of his official military personnel file (OMPF)
* reconsideration of his application for a U.S. Army Reserve (USAR) appointment by the Officer Accessions Branch, U.S. Army Human Resources Command (HRC)

2.  The applicant states: 

	a.  On 23 June 2005, he received an Article 15 for his violation of Article 111 of the UCMJ.  As he did then, he still takes full responsibility for his actions and admits that his actions on the night of 8 February 2005 were irresponsible and not in keeping with the high standards of an officer in the U.S. Army.  After taking responsibility for his actions, he admitted that he had an alcohol abuse problem and sought treatment.  Additionally, he had continued to dedicate his life to proving that this one mistake would not define who he is as a person.  Following the incident, he was not allowed to enter residential treatment by his chain of command and was ordered instead to go to Korea on temporary duty (TDY) for one month.  He requested to be placed on Antabuse for the trip and fulfilled both his obligation to perform as an officer and his obligation to treat his illness.  Immediately upon his return from Korea, he voluntarily enrolled in a twelve-step program to treat his alcohol addiction.  Because of his actions and work ethic, his chain of command spoke on his behalf before GEN M----n D----ey, the imposing officer, at his Article 15 proceeding.  Based on his actions and performance,  GEN D----ey imposed the punishment of forfeiture of $2,084 per month for 2 months and ordered the DA Form 2627 be filed in the restricted folder.  When GEN D----ey spoke to him, he said that he did not want this one mistake to end his military career.  

	b.  Since that proceeding, he has not consumed any alcohol, and on 9 February 2015 he will celebrate 10 years of sobriety.  He continued to serve our country honorably and with distinction including service as a troop commander in Iraq in 2007 and as a battalion S3 and executive officer in Afghanistan in 2011-2012.  His officer evaluation reports (OER) are exemplary and representative of an officer in the top tier of his cohort.  On 31 July 2014, he was notified that he was selected for separation by the Officer Separation Board (OSB).  He understood that the Article 15 was weighted heavily in the decision of the board.  This notification was painful, but he accepted the decision made by the OSB.  Immediately upon notification, he was offered a Reserve position at the U.S. Army Physical Disability Agency, National Capital Region, by the Commander.  He informed him he would accept the position, and would expedite his release from active duty in order to start work as soon as possible as a Reserve officer.  

	c.  On 15 September 2014, he was notified by the Officer Accessions Branch, HRC that his request for USAR appointment was denied based upon not meeting established eligibility requirements.  When he contacted the Chief of the Operations Team, Officer Accessions Branch, an official explained that the Article 15 filed in his restricted folder was the basis for their decision.  He believes that there are two injustices to be rectified.  His separation from active duty on 31 July 2014 appears to be in direct conflict with GEN D----ey’s intent when he filed the Article 15 in the restricted folder and told him that he did not want this one mistake to end his military career.  Regardless, his career was terminated 9 years later without apparent regard for his service record from 2005-2014.  However, the only injustice that he is requesting to be fixed is to meet eligibility requirements of a USAR officer.  He has and continues to take full responsibility for the mistake he made almost 10 years ago.  He has continued to grow both personally, as evidenced by almost 10 years of sobriety, and professionally, as evidenced by the successful completion of troop command while deployed to Iraq and the over 40 months of successful time as a major (MAJ) in the Regular Army, receiving four Above Center of Mass (ACOM) OERs. The preponderance of evidence shows that he not only meets the requirements to be an officer in the USAR, but that he exceeded those requirements.

3.  The applicant provides:

* Letter of support from GEN D----ey, Chairman, Joint Chiefs of Staff
* Self-authored executive summary
* Officer Record Brief
* Contested Article 15
* Denial memorandum of his USAR appointment
* OERs from 2004 to 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer off the Army and Louisiana Army National Guard (LAARNG) and executed an oath of office on 17 May 1997.  He completed the Aviation Officer Basic Course and he was promoted to first lieutenant on 31 December 1999.

2.  He was ordered to active duty on 10 April 2002 and completed the OH-58D reserve Warrior Aviator Qualification Course from 11 April to 9 July 2002. 

3.  He served in Iraq from 20 October 2003 to 21 July 2004.  He was promoted to captain (CPT) on 17 March 2004.  He was assigned to Headquarters and Headquarters Troop, 1st Squadron, 1st Cavalry, 1st Armored Division, Germany. 

4.  On 15 April 2005, while holding the rank of CPT, at an open hearing, the applicant declined trial by a court-martial.  He was found guilty of and accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for physically controlling a vehicle (passenger car), while the alcohol concentration in his blood was 0.182 grams of alcohol per 100 milliliters of blood. 

5.  His punishment consisted of a forfeiture of $2,084.00 pay per month for 2 months.  The imposing officer, then Major General D----ey, Commanding General, 1st Armored Division, ordered the Article 15 filed in the restricted folder of the applicant's OMPF.  The applicant elected not to appeal his punishment. 

6.  He continued his service in the Army, in the Regular Army, and subsequently served in a variety of assignments, including Iraq from 12 May 2007 to 27 August 2008 and Afghanistan from 8 September 2011 to 8 September 2012.  

7.  He completed the armor captain's career course, served as an air-cavalry troop commander, served in combat as an assistant S-3, served as an executive officer, and he was promoted to MAJ on 1 July 2010.  He received multiple favorable OERs, many of which with an ACOM rating. 

8.  He received multiple awards and decorations, most notably the Bronze Star Medal (2nd Award), Meritorious Service Medal, Air Medal (3rd Award), Army Commendation Medal (3rd Award), and a myriad of service and campaigns ribbons awarded or authorized.  

9.  He was considered by the Fiscal Year 2014 OSB and he was selected for involuntary separation in accordance with Title 10, U.S. Code, section 638A(E) and Army Regulation 600-8-24 (Officer Discharges), paragraph 5-9(d)(g).  

10.  On 13 August 2014, HRC notified him of his selection for involuntary separation.  His notification memorandum informed him that:

* he would be authorized full separation pay, provided he requests appointment in the USAR for at least 3 years 
* if he had an active duty obligation that would not be satisfied at his separation action to recoup additional service obligation would be waived
* he indicated that he intended to continue service in the USAR and if so, he must have an approved reappointment prior to separation

11.  Meanwhile, his application for USAR appointment was considered by the Officer Accessions Branch at HRC; but, based on the established requirements he was not selected for appointment.  As such, he was not scrolled by the Secretary of Defense. 

12.  He was honorably released from active duty on 30 September 2014.  His DD Form 214 shows he completed 12 years, 5 months, and 21 days of active service and he was authorized $123,590.99 of severance pay. 

13.  A review of his OMPF reveals that the contested DA Form 2627 is filed in the restricted folder of his OMPF. 

14.  The applicant submitted a letter of support from GEN D----ey, then the imposing officer and now the Chairman, Joint Chiefs of Staff.  He states after review of the applicant's file, he requests the Board remove the Article 15 from his file and he also recommends his appointment as a USAR officer.  He adds that the applicant has clearly done everything that can be asked of a Soldier who has made a mistake.  His service has been exemplary and his continued service as a USAR officer would greatly benefit our force.  

15.  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 Army Board for Correction of Military Records (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.

16.  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.  

17.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard and the USAR.  Paragraph 1-6 outlines the eligibility criteria for appointment.  One of the criteria is to have a good moral character. 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the removal of the contested Article 15: 

	a.  The evidence of record confirms the applicant violated the UCMJ while serving as a CPT and subsequently accepted NJP on 15 April 2005 for physically controlling a passenger car while the alcohol concentration in his blood was 0.182 grams of alcohol per 100 milliliters of blood.  The imposing officer directed filing the Article 15 in the restricted folder of his OMPF.  This is where the subject Article 15 is currently filed.

	b.  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 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.  

	c.  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 provides no 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.  

	d.  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.  His dissatisfaction with the outcome of this NJP does not invalidate the contested Article 15 and any impact on his career is a natural consequence of his own actions.  In the absence of an error or an injustice, there is no reason to remove the Article 15 from his records.

2.  With respect to reconsideration of his application for a USAR appointment, the ABCMR does not correct records for the purpose of entitlement to other programs or benefits: 

	a.  Prior to his separation, he indicated his desire for appointment as a USAR officer.  His application was considered but he was not accepted.  Although he presents a solid record as evidenced by his OERs, combat service, and awards and decorations, the reason for his non-acceptance is unknown.  The contention that the NJP was the single reason for his non acceptance is speculative.  In this era of downsizing it is possible the Army did not need as many officers in his grade and specialty.  It is equally possible other officers who were selected were more qualified than he was.  

	b.  There are many reasons why he was not accepted for appointment as a USAR officer.  While Army Regulation 135-100 outlines the general criteria for appointment as a USAR officer, the ABCMR is not privy to the specific reasons for selection or non-selection.  A non-selected officer can only conclude that the officer accession board or the officials reviewing his application determined that his overall record, when compared with the records of others did not reflect as high a potential as those selected for appointment.  

	c.  Again, there is no evidence of record and he provides no evidence to show his non-selection for appointment is untrue or unjust.  As a result, there is no reason to reconsider him for appointment.  

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)                                         AR20140020458



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20140020458



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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SAMR-RB																	 4 February 2015


MEMORANDUM FOR COMMANDER, U.S. ARMY HUMAN RESOURCES COMMAND, 
1600 SPEARHEAD DIVISION AVENUE, FORT KNOX, KY  40122-5100

SUBJECT:  Army Board for Correction of Military Records Record of Proceedings       for, AR20140020458


1.  Reference the attached Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 22 January 2015.

2.  The members of the Board voted unanimously, in accordance with the analyst’s recommendation, to deny the applicant’s request to remove a DA Form 2627 dated     15 April 2005 from the restricted folder of his official military personnel file (OMPF) and to be reconsidered for his application for a U.S. Army (USAR) appointment.    

3.  I have reviewed the evidence submitted by the applicant, the Record of Proceedings, and the Board’s rationale in voting for denial.  

4.  Notwithstanding the Board’s decisions, I recognize that the DA Form 2627 imposing officer (who is now the Chairman, Joint Chiefs of Staff) has now provided a statement recommending removal of the document from the applicant OMPF and that he also recommended his consideration for appointment in a USAR officer.  I accept his recommendation. 

5.  Therefore, under the authority of Title 10, U.S. Code, section 1552, the recommendation of the ABCMR is hereby modified by:

   a. removing the DA Form 2627 dated 15 April 2005 and all related documents from the applicant’s OMPF and returning these documents and the Record of Proceedings to the ABCMR for filing (i.e., not filing the Record of Proceedings in his OMPF); and

   b. directing that the applicant be further re-looked for appointment as a USAR officer.

6.  Request necessary administrative action be taken to effect the correction of records as indicated no later than 4 June 2015.  Further, request that a copy of this 


SAMR-RB
SUBJECT:  Army Board for Correction of Military Records Record of Proceedings       for, AR20140020458

memorandum and the Record of Proceedings be provided to the applicant and counsel, 
if any, as well as any Members of Congress who have shown interest in the result in this case.  


BY ORDER OF THE SECRETARY OF THE ARMY:



Encl												
												      Deputy Assistant Secretary of the Army
												         (Review Boards)


CF: 
(X) OMPF