IN THE CASE OF:  

		BOARD DATE:  9 June 2015	  

		DOCKET NUMBER:  AR20150001852 


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, through a Member of Congress, removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  he and his ex-wife were going through marital counseling in an attempt to keep their marriage when the protective order was violated;

   b.  the court dismissed the allegation against him; and
   
   c.  his ex-wife serves in the Air Force and made the allegations against him because she was having an affair.
   
3.  The applicant provides:

* E-mail communication dated 21 January 2015
* Member of Congress letters dated 30 December 2014 and 29 April 2015
* two Privacy Act Statements
* State of Texas Court Order
* Attorney Letter dated 6 April 2012
* Charis Counseling Center, letter dated 22 February 2011



CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that after having prior active military service, he reenlisted in the U.S. Army Reserve (USAR) indefinitely in the rank of sergeant first class/E-7 on 22 April 2009.  The DD Form 4 (Enlistment/Reenlistment Document) completed at that time shows:

   a.  He understood he would be allowed to continue in an Army Guard Reserve (AGR) status until he reached the retention control point (RCP) for his current grade or his maximum age, whichever came first.
   
   b.  If he was selected from promotion/promoted, reduced in rank, or became ineligible for continued service, he would be further retained or separated in accordance with appropriate policies.

2.  The applicant's OMPF contains United States Army Recruiting Company, Lubbock, Lubbock Texas Memorandum, Subject: Report of Investigation (ROI), dated 21 February 2012.  It shows that among four other allegations, the applicant did violate a protection order on many occasions by illegally entering the home of Ms. J______, (his ex-wife), when she was away and attempted to extort money from her and threatening her career.

3.  On 27 December 2012, the applicant was notified by his company commander was considering whether he should be punished under Article 15, UCMJ, for twice failing to obey a protective order by wrongfully making contact with Ms. V____ D____ (his wife at the time) and being within 200 feet of her residence on or about 31 January 2012 and wrongfully sending her text messages on 1 February 2012.
   
4.  On 16 December 2012, the applicant elected not to demand a trial by court-martial and chose for the matter to be handled by his battalion commander at a closed hearing, and not to present matters in defense, mitigation, and/or extenuation.  He also elected not to speak on his own behalf.

5.  Having considered all matters presented in the closed hearing, the commander found him guilty of all specifications against him.  The punishment imposed consisted of a forfeiture of $2,206.00 pay per month for two months,   reduction and an oral reprimand.

6.  On 16 January 2013, the applicant elected not to appeal the punishment nor submit additional matters and signed a DA Form 2627 confirming this election.

7.  The applicant provides Charis Counseling Center letter dated 22 February 2011.  It indicates he and his spouse began marriage counseling on 30 December 2010 and that the applicant attended all five counseling sessions.

8.  The applicant provides the State of Texas Criminal Court Order Number 11, dated 3 April 2012.  It shows that after investigation, it was determined that the case should be dismissed in the interest of justice.

9.  The applicant provides a Memorandum from the Chief, Transition Branch, U.S. Army Human Resources Command (USAHRC), dated 13 April 2015.  This official provides:

	a.  The Qualitative Management Program Selection Board conducted a comprehensive review of your record for potential denial of continued service under the Qualitative Management Program and recommended he be denied continued active duty service.

	b.  As a result, the Director of Military Personnel Management approved the board’s recommendation and he will be involuntarily discharged from the Army no later than 1 November 2015.  In lieu of involuntary discharge, the applicant was given the following options:

(1)  request an early separation date that must allow a minimum of 90 days for pre-separation counseling via the Soldier for Life Transition Assistance Program.

(2)  Appeal this decision and request retention on active duty.  If he elects to appeal, any such appeal is limited to newly-discovered evidence, the subsequent removal of error, as described by paragraph 4-13f, Army Regulation 600-8-19, in his record when reviewed by the selection board.  Material error is the omission, change, or improper filing of information in the OMPF not related to him.

c.  If he chooses to appeal, he must submit the appeal through his chain of command.  The General Court-Martial Convening Authority or general officer commander must recommend approval or disapproval of the appeal and forward the request with comments and/or endorsement to Commander, USAHRC within 30 days of receipt of this notification.

d.  All separating Soldiers are required to contact their supporting Soldier for Life-Transition Assistance Program (SFL-TAP) to register and receive the mandatory pre-separation briefing.

10.  In two self-authored statements dated 29 December 2014 and 27 April 2015, included on his Privacy Act Release Forms, the applicant questions/states:

* if the QMP Board overrides the Army Review Board?
* he received an erroneous Article 15 in January 2013 for violation of a protective order that was dismissed by the courts
* the erroneous Article 15 is jeopardizing his career and he feels this NJP is double jeopardy
* the QMP Board is trying to discharge him from the Army based on the erroneous Article 15 

11.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and part V, Manual for Courts-Martial.

	a.  Paragraph 3-18 states the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of a matter under the provisions of Article 15, UCMJ.  The Soldier will be informed of his/her right to consult with counsel and the location of counsel.  Before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.

	b.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states the basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there is an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the Article 15 administered to him on 16 December 2013 is erroneous and should be removed from his OMPF because the court dismissed his case.  However, while the applicant provides an order from the State of Texas, County Criminal Court #11, that confirms the case against him was dismissed; this order did not specify the charges against him or any other facts to confirm he was issued the Article 15 for the same offense(s) or reason(s).

2.  The evidence of record confirms the applicant was issued an Article 15/NJP for twice violating an order of protection and for attempting to extort money from his now ex-wife.  In addition, the ROI on file confirms he violated the order of protection multiple times and he attempted to extort money from his wife.  Even if the civilian case against him was based on the same violations, the applicant admits the protective order was violated when he and his wife were going through marital counseling in an effort to keep their marriage.

3.  His NJP proceedings were conducted in accordance with law and regulation and his NJP is properly filed in his OMPF as directed by the imposing commander.  There is no evidence of record and he provides none to show the contents of the NJP is erroneous, untrue, or unjust.

4.  By regulation, in order to remove this document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust. The applicant has failed to provide sufficient independent evidence to satisfy the clear and convincing regulatory standard, or that support his assertion that the Article 15 was erroneous or to terminate the QMP action taken against him.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief. 

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20150001852





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ABCMR Record of Proceedings (cont)                                         AR20150001852



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