IN THE CASE OF: BOARD DATE: 4 February 2014 DOCKET NUMBER: AR20130011276 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 correction of his military records by removing his record of nonjudicial punishment (NJP) from the performance section of his Army Military Human Resource Record (AMHRR). In the alternative, he requests that the NJP be moved into the restricted section of his AMHRR. 2. The applicant states that since leaving active duty he has continuously sought to improve ethically and to make himself more marketable in this new job environment. In the last 2 years, he has acquired two Masters' Degrees (Emergency and Disaster Management August 2012/Organizational Leadership May 2013). He is currently enrolled in a Strategic Leadership Program with Regent University at the doctorate level. He has also been fully engaged in church activities and volunteers weekly leading youth group activities for at-risk teenagers in the community. He is also a volunteer at the local Veterans of Foreign Wars. In the past 2 years, he has been unable to find a job, especially at the Federal level, due to the record of NJP that is in his AMHRR. Most recently, a job offer from the Defense Finance and Accounting Service was rescinded after his AMHRR was reviewed. He has also been turned down once for a Reserve promotion to captain due to the derogatory information in his file. The official in charge of Special Actions at the U.S. Army Human Resources Command (HRC), located at Fort Knox, KY, told him that the next promotion turn down (which is likely because of the information in his record) would be cause to initiate action to remove him from the Army Reserve with a less than an honorable discharge. He said that unless the NJP is removed from his AMHRR, it is unlikely his situation would change for the better. His only source of income right now is his veteran disability monthly payment for post-traumatic stress disorder (PTSD) which he sustained in Iraq. He would appreciate whatever can be done to improve his situation. He does not have anyone else who is in a position to assist him. 3. The applicant provides copies of: * Brandman University Official Transcript, issued 27 May 2013 * Columbia Southern University Official Transcript, issued 15 September 2011 CONSIDERATION OF EVIDENCE: 1. The applicant completed Officer Candidate School and was appointed as a second lieutenant, pay grade O-1, on 25 October 2006 in the Army National Guard. In 2007, he was transferred to the U.S. Army Reserve (USAR). 2. In April 2008, the applicant was assigned for duty with the 3rd Brigade Combat Team, 4th Infantry Division and served in Iraq for about 9 months. On 19 August 2008, he was promoted to first lieutenant, pay grade O-2. 3. He returned to the United States in December 2008 for duty at Camp Atterbury, IN. He was initially assigned for duty as the Assistant S3 (operations officer) and later was the supply and service officer. 4. On 12 January 2011, the applicant did not demand trial by court-martial; but rather accepted NJP in a closed hearing for consideration of the following criminal offenses: a. stealing in or around December 2009, unemployment compensation benefits from the State of Indiana, valued greater than $500.00; b. falsely making certain writings on or about 5 October 2009 and again on 19 January 2010, with intent to defraud, on a Capital One Credit Card application, which if genuine, would operate to the legal harm of another; and c. falsely making the signature of a court judge on a certificate of marriage, which if genuine, would operate to the legal harm of another and which was used to the legal harm of the United States Government by allowing another Service Member to fraudulently obtain a cash benefit. 5. The imposing commander, a general officer, indicated the NJP proceedings were held in a closed hearing where all matters presented in defense, mitigation, and/or extenuation were considered. No specific punishment was recorded as imposed. The imposing commander directed that the NJP be filed in the performance section of the applicant's AMHRR. There is no evidence that the applicant appealed the NJP. 6. On 5 March 2011, the applicant was released from active duty and transferred to the 3rd Battalion, 338th Regiment. His active duty service was characterized as honorable. 7. 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 non-punitive 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 non-punitive measures are considered inadequate or inappropriate. NJP may be imposed to correct, educate, and reform offenders whom 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. It further states: a. A commander's decision whether to file a record of NJP in the performance section of a Soldier's AMHRR 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. For Soldiers above the rank of sergeant, the original copy of the NJP will be sent to the appropriate custodian for filing in the AMHRR. The decision to file this form in the performance or restricted section of the AMHRR will be made by the imposing commander at the time punishment is imposed. c. For the transfer or removal of an NJP from the AMHRR, applications for removal of an NJP from the AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further states that there must be clear and compelling evidence to support removal of a properly-completed, facially-valid NJP from a Soldier's record by the ABCMR. 8. Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR. a. It identifies those documents that are authorized for filing in the AMHRR. Depending on the purpose, documents will be filed in the AMHRR in one of three sections: performance, service, or restricted. It shows the NJP is filed in either the performance or restricted section of the AMHRR as directed in item 5 of the document. b. It provides that the restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this section is controlled. It will not be released without written approval from the Commander, HRC, or the Department of the Army Headquarters selection board proponent. This paragraph also provides that documents in the restricted section of the AMHRR 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 AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected by removing his record of NJP from the performance section of his AMHRR. In the alternative, he requests that the NJP be moved into the restricted section of his AMHRR. 2. The evidence of record confirms the applicant accepted NJP in lieu of court-martial for stealing and committing fraudulent acts with the intent to harm others. The imposing commander directed that the NJP be filed in the performance section of the applicant's AMHRR. 3. His NJP proceedings were conducted in accordance with law and regulation and are properly filed in the performance section of his AMHRR as directed by the imposing commander. There is no evidence of record and the applicant provides none to show the NJP is untrue or unjust. Furthermore, the applicant does not dispute the contents of the NJP. 4. In order to remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust. In the absence of an error or an injustice, there is no reason to remove it from his records. 5. The applicant argues that his NJP should be removed from his AMHRR because he is having difficulty obtaining employment. He further contends that if his NJP is not removed, or at the very least, moved to the restricted section of his AMHRR, he will probably be passed over again for promotion and be discharged from the Army as a result. These difficulties that the applicant is experiencing are serious and have a profound impact on his life. However, they are the result of his criminal actions and not as a result of the Army maintaining an accurate record of those actions. 6. The restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers. It also contains investigation reports and appellate actions to protect the interests of both the Soldier and the Army. In this case, the available evidence and the applicant's argument do not provide a sufficient basis for moving his NJP to the restricted section of his AMHRR. 7. 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) AR20130011276 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130011276 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1