RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 December 2007 DOCKET NUMBER: AR20070007357 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mr. Mohammed R. Elhaj Analyst The following members, a quorum, were present: Ms. Linda D. Simmons Chairperson Ms. Eloise C. Prendergast Member Mr. James R. Hastie Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the record of nonjudicial punishment and letter of reprimand be removed from his Official Military Personnel File (OMPF). 2. The applicant states that Army Regulation 15-185 (Army Board for Correction of Military Records) and Army Regulation 600-37 (Unfavorable Information) allow such removal when the Soldier is at least a Staff Sergeant and provides evidence of a clear and convincing nature that indicates the Article 15 and letter of reprimand is untrue or unjust in whole or part. 3. The applicant provided the following additional documentary evidence in support of his application: a. Self-authored letter, dated 23 March 2007, listing timelines of each event. b. DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 August 2005. c. Memorandum, dated 6 March 2006, Commander's Inquiry. d. Applicant's Rebuttal Statement, dated 1 April 2006. e. DA Forms 2823 (Sworn Statement) by several individuals involved in the issue. f. The applicant's DA Form 31 (Request and Authority for Leave), showing a 4-day pass. g. The applicant's Standard Form (SF) 600 (Chronological Record of Medical Care), dated 13 February 2006. h. DA Form 2627 (Record of Proceedings Under Article 15, UCMJ). i. The applicant's DA Form 4187 (Personnel Action), dated 11 February 2006, volunteering for CONUS Temporary Tour of Active Duty (COTTAD). k. Master Sergeant (MSG) Z******'s DA Form 4187, dated 11 February 2006, volunteering for COTTAD. CONSIDERATION OF EVIDENCE: 1. The applicant is a Master Sergeant in the U.S. Army Reserve with over 22 years of military service. At the time of his nonjudicial punishment, he was assigned to the 651st Area Support Group, Detachment 5, Fort Carson, Colorado, which was a subordinate unit of the 1st Mobilization Brigade, Fort Carson, Colorado. 2. On 23 February 2006, the Fort Carson, Colorado, Post Commander's secretary received two DA Forms 4187, Request for COTTAD, submitted by the applicant and another member (MSG Z******). In reviewing the DA Form 4187, the secretary called the detachment commander to verify some information. During the course of that conversation, it was determined that the 1st Mobilization Brigade Commander's signature on the applicant's DA Form 4187 differed from that on MSG Z******'s. 3. On 27 February 2006, the 1st Mobilization Brigade Commander appointed an investigating officer to conduct a commander's inquiry because it appeared that his signature was forged on the DA Form 4187 submitted by the applicant. 4. The investigating officer determined that the 1st Mobilization Brigade sergeant major (SGM) received the two packets on 11 February 2006. He reviewed the packets, inquired with the detachment commander regarding the Soldiers' performance, and made recommendations to the 1st Mobilization Brigade Commander. Additionally, the SGM witnessed the Commander approving MSG Z******'s request and disapproving the applicant's request. The SGM handed the packets to the unit's S-1 (Personnel Officer) for processing. 5. The investigating officer conducted telephonic and personal interviews with all key players involved in processing the DA Forms 4187 for both Soldiers. a. In a sworn statement, dated 24 February 2006, the detachment commander stated that on 11 February 2006 she provided a professional opinion to the 1st Mobilization Brigade Commander regarding the performance of both Soldiers in relation to the COTTAD requests. She gave a negative recommendation regarding the applicant and a positive one for MSG Z******. On 13 February 2006, when she arrived at work, she found the two packets slid under her door by the S-1 for distribution to the Soldiers. She opened each and noticed that the applicant's request was disapproved. She instructed her noncommissioned officer in charge to distribute the packets to the Soldiers. On 23 February 2006, while talking to the secretary, the issue came up and the secretary mentioned that both DA Forms 4187 were approved. This surprised the company commander, since she knew that the applicant's request was disapproved, and led to a closer look at the signature block. b. In a sworn statement, dated 27 February 2006, the SGM stated that he reviewed both packets on 11 February 2006 and inquired with the company commander about the Soldiers' performance. He also stated that he personally witnessed the 1st Mobilization Brigade Commander approving MSG Z******'s application and disapproving the applicant's. c. In a sworn statement, dated 1 March 2006, the Post Commander's secretary stated that the applicant delivered both requests to her on 23 February 2006. While reviewing them that evening, she had some questions so she called the company commander. In the course of the conversation, it was determined there were questions regarding the signature on the applicant's request. She faxed both forms to the Deputy Post Commander on 24 February 2006 and briefed the Post Command Sergeant Major (CSM) of the events. d. In a sworn statement, dated 1 March 2006, the 1st Mobilization Brigade Commander stated that he disapproved the applicant's request on 11 February 2006. However, on 23 February 2006, he received the information that his signature may have been forged. He asked for both forms to be faxed to him and upon receipt, he examined the forms and it clearly appeared to him that the signature on the applicant's request was not his. He discussed the issue with his CSM and both decided to investigate this matter further. e. In his sworn statement, dated 1 March 2006, MSG Z****** stated that he was called by the SGM on 12 February 2006 to let him know that the Commander approved his request and disapproved the applicant's. The applicant and MSG Z****** picked up the packets on 15 February 2006 from the S-1 and delivered them to the Post Commander's office. f. In a second sworn statement, dated 1 March 2006, MSG Z****** stated that he told the investigating officer during his re-interview that the applicant picked up both packets on 13 February 2006 and that when he met with the applicant on 14 February 2006, he noticed that both packets were approved which surprised him given that the SGM had called him earlier and told him the applicant's request was disapproved. MSG Z****** also states that he noticed then the difference in signature and date. g. In a sworn statement, dated 2 March 2006, the S-1 stated that she received the packets on 12 February 2006 from the SGM and noticed that the applicant's request was disapproved by the 1st Mobilization Brigade Commander. Later that day, she slid both packets under the company commander's door for distribution. h. In a sworn statement, dated 3 March 2006, the S-1 noncommissioned officer in charge stated that he received the packets from the company commander on 13 February 2006 to give to the two Soldiers, but since he could not find them, he left both packets on his desk. Later that day, the applicant came by his desk and picked up both packets. 6. After completing his inquiry and reviewing sworn statements, the investigating officer determined that the applicant had the motive and had the opportunity, and had forged the 1st Mobilization Brigade Commander's signature on the DA Form 4187. The investigating officer recommended that court-martial charges be preferred against the applicant. 7. In his 1 April 2006 rebuttal statement to the investigation, the applicant stated that he was at a doctor's office for his physical examination throughout the entire day on 13 February 2006. He also questioned why the SGM called MSG Z****** to tell him his action was approved, but did not extend the same courtesy to the applicant and that the investigating officer did not read him his rights right away. 8. The applicant's DA Form 31 shows that his request for a 4-day pass during the period 18 February 2006 through 21 February 2006 was approved. 9. The health technician at Fort Carson, Colorado, Physical Exams Center signed a statement verifying that the applicant was scheduled to be seen during the morning hours of 13 February 2006, but due to a scheduling error, he had to be rescheduled and was the last patient to be seen at the clinic that day. 10. After reviewing all the evidence, the 1st Mobilization Brigade Commander decided to impose nonjudicial punishment against the applicant for forging the signature of the Commander on a DA Form 4187 on or about 23 February 2006. 11. On 24 March 2006, the 1st Mobilization Brigade Commander, after having considered all matters presented in defense, mitigation and/or extenuation at an open hearing, imposed the following punishment on the applicant: forfeiture of $2,301 pay for one month and a written letter of reprimand. The applicant elected not to appeal the punishment. 12. The applicant’s OPMF does not indicate that he petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of the Article 15 from his OMPF. 13. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM. It states, in pertinent part, that the decision whether to file a record of nonjudicial punishment in the performance section of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed. Paragraph 3-37b (2) states, in pertinent part that for Soldiers, in the ranks of sergeant (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 final subject to review by superior authority. 14. Paragraph 3-18 of the military justice regulation contains guidance on notification procedures and explanation of rights. It states, in pertinent part, that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15. It further stipulates that the Soldier will be informed of the following: the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial. It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, request to be accompanied by a spokesperson, an open hearing and to examine available evidence. 15. Paragraph 3-43 of the military justice regulation contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF. It states, in pertinent part, 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 600-37 (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. 17. Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. It states that appeals and petitions for removal of unfavorable information are to be directed to the DASEB. Paragraph 7-2 of this 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. 18. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF. This document states that only those documents listed in Table 2-1 and Table 2-2 is authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted. Table 2-1 (Composition of the OMPF) shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed by Item 5 of the DA Form 2627. It also shows that approved requests for the release of documents in the restricted section of the OMPF will be filed in the restricted section of the OMPF. 19. Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides, in pertinent part, that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. Paragraph 2-6 provides an exception to this policy and allows Command Sergeant Major (CSM)/Sergeant Major (SGM) promotion boards, SGM Academy Selection boards, and CSM/SGM Retention boards to review matters in the restricted portion of the OMPF. The release of information on this section is controlled. It will not be released without written approval from the Commander, U.S. Army Human Resources Command (i.e., for enlisted Soldiers, formerly designated as Headquarters, U.S. Army Enlisted Records and Evaluation Center) or the Headquarters, Department of the Army (HQDA) selection board proponent. This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interest of the Soldier and the Army. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he is entitled to removal of Article 15 and letter of reprimand from his OMPF. 2. Prior to finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense. The evidence of record confirms that after being afforded the opportunity to consult with legal counsel, the applicant elected not to demand a trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing. The applicant did not appeal the non-judicial action. The commander directed the punishment be effected, and the DA Form 2627 be filed in the performance fiche (i.e., section) of the applicant's OMPF. 3. The record of nonjudicial punishment and letter of reprimand were properly filed and are now properly maintained in the applicant's OMPF. They are permanent parts of his record. There is no injustice in the continued maintenance of the record of nonjudicial punishment or letter of reprimand in his OMPF, and the applicant has not provided any good reason, other than his own desires, to remove the record from his OMPF. 4. The applicant provides insufficient evidence to show that the DA Form 2627 or the letter of reprimand were untrue or unjust. Therefore, the both documents are deemed true and accurate and are properly filed in the applicant's OMPF. Consequently, there is no basis to remove the Article 15 or the letter of reprimand from is OMPF. Therefore, his request to do so is not granted. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __lds___ __ecp___ __jrh___ 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. Linda D. Simmons ______________________ CHAIRPERSON INDEX CASE ID AR20070007357 SUFFIX RECON DATE BOARDED 20071204 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 134.0100 2. 126.0500 3. 4. 5. 6.