BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150015107 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ____x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150015107 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20150015107 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, in effect, removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 5 June 2014, from the restricted folder of his official military personnel file (OMPF). 2. The applicant states he was told by his commander when he received the nonjudicial punishment (NJP) under Article 15 of the UCMJ that it would not impact his career in any way and in 6 months it would be done away with. After he signed the DA Form 2627 and the Qualitative Management Program (QMP) notifications were issued, he found out the DA Form 2627 was filed in his OMPF and that was the reason he was being considered under the QMP. 3. The applicant provides: * self-authored memorandum * two memoranda of support CONSIDERATION OF EVIDENCE: 1. After a combined total of over 20 years' service in the Regular Army and the U.S. Army Reserve (USAR) as a troop unit program member, the applicant entered active duty in a USAR Active Guard Reserve (AGR) status on 27 February 2012. 2. A DA Form 2627 shows he accepted NJP under the provisions of Article 15 of the UCMJ on 5 June 2014 for the following misconduct: * wrongfully using his Government Travel Charge Card (GTCC) on or about 5 June 2013 to receive a cash advance while not in an authorized travel status * wrongfully using his GTCC on or about 13 June 2013 to purchase items at an Army and Air Force Exchange Service retail store while not in an authorized travel status * wrongfully using his GTCC on or about 29 July 2013 to receive a cash advance at the American Road Truck Stop while not in an authorized travel status * wrongfully using his GTCC on or about 29 July 2013 to receive a cash advance at Chase Bank while not in an authorized travel status * wrongfully using his GTCC on or about 9 August 2013 to purchase fuel for a vehicle while not in an authorized travel status * wrongfully using his GTCC on or about 29 August 2013 to purchase a meal at McDonalds while not in an authorized travel status * wrongfully using his GTCC on or about 29 August 2013 to purchase items at a Shell Oil service station while not in an authorized travel status 3. The DA Form 2627 shows that having been afforded the opportunity to consult with counsel, he did not demand a trial by court-martial; he did not desire a spokesman to accompany him; he elected to present matters in defense, extenuation, and/or mitigation in person; and he requested an open hearing. 4. He was found guilty of all specifications by a field grade officer. His punishment consisted of forfeiture of $2,266.00 pay per month for 2 months, suspended for 180 days. His commander, Lieutenant Colonel (LTC) H____, advised him of his right to appeal his punishment within 5 days of the date of imposition. On 5 June 2013, he elected not to appeal his NJP. The reviewing Judge Advocate signed the document on 17 June 2014. 5. A review of his records shows the DA Form 2627 was filed in the restricted folder of his OMPF. His OMPF does not contain documentation referencing his denial of continued active duty service based on selection by a QMP board or his subsequent QMP appeal. 6. He provided copies of two memoranda written in support of his QMP appeal. The first memorandum is from his former senior noncommissioned officer, Master Sergeant V____, and the second is from his former commanding officer, LTC H____, who imposed the NJP in question. a. MSG V____'s memorandum states: (1) She has 29 years of service and supports the applicant's QMP appeal. She served with him when he received his NJP under Article 15 of the UCMJ for his unauthorized use of his GTCC. She personally counseled him for the unauthorized use of the card and ensured he paid his GTCC in full during the next billing period. She thought her counseling and his payment of the bill resolved the issue; however, higher headquarters ordered her to counsel him again some months later. She followed orders and did not believe additional counseling was warranted. (2) Months after the counseling, the command decided to impose NJP against him and she was present for the first and second readings of the punishment. The commander specifically told him the action would be a "company-grade Article 15," any adjudged punishment would be suspended for 6 months, and the matter would go away and not affect his official military record providing he had no further infractions or disciplinary issues. The commander specifically told him that "if you keep your nose clean for 6 months, this will go away," or words to that effect. (3) Based on the commander's statement and assurances to the applicant that accepting NJP would not adversely affect his record, he did not elect trial by court-martial and instead agreed to accept the NJP. He was not provided with a copy of the paperwork at either the first or second readings. She believes he would have demanded trial by court-martial had he known the action would be placed in his official records or affect his career. b. LTC H____'s memorandum states: (1) He is the commander for the 10th Battalion, Army Reserve Careers Division, and the applicant is one of the Soldiers under his command. He has known the applicant since the late 1990s when he was his platoon leader and they were both serving on active duty in the Regular Army in Germany. The applicant was a good Soldier back then and he believes he is still a good noncommissioned officer. He is a hard worker and strives to do the right thing. He truly cares about the Soldiers under his responsibility and takes his job very seriously. He is an asset to the command and his Soldiers appreciate his counsel. (2) He understands the applicant is going before a QMP board because the applicant received NJP under Article 15 of the UCMJ that he administered. He had a few noncommissioned officers who misused their GTCCs and he imposed NJP against all of them. Some thought they did not do anything wrong and some came forward on their own. The applicant agreed he "screwed up" and fully accepted his punishment. That was the end of it and the applicant has been on the straight and narrow path ever since. He believes the applicant learned his lesson and will continue to be a benefit to the command and the USAR. He recommends the applicant's retention for continued service in the USAR. 7. U.S. Army Human Resources Command memorandum, dated 16 April 2015, Subject: Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-Year Letter), notified him he completed the required years of qualifying Reserve service and was eligible for retired pay on application at age 60. 8. He submitted a memorandum to the U.S. Army Human Resources Command on 15 May 2015 in which he appealed his denial of continued active duty service under the QMP. It states: a. The sole basis for his initial QMP notification of 5 December 2014 is a DA Form 2627, dated 5 June 2014, that is filed in the restricted folder of his OMPF. He received NJP for using his GTCC without authority for personal use and offers new facts regarding the circumstances of his acceptance of NJP. b. His senior noncommissioned officer, MSG V____, counseled him for the unauthorized use of his GTCC close in time to his actual use of the card, in the spring or summer of 2013. He immediately paid the outstanding balance in full and never used it without authority for personal use again. Neither his noncommissioned officer support channel nor his chain of command recommended him for any punitive or adverse administrative action at the time. He was led to believe that if he paid the GTCC balance and did not use the card again without authority or for personal use that the matter would be resolved. c. In the months following his unauthorized use of the GTCC, other Soldiers in his battalion also used their GTCCs for impermissible purposes. This pattern of unauthorized GTCC use raised the attention of his chain of command, which subsequently decided punitive action was required. Accordingly, the commander decided to uniformly impose NJP against all offending parties who used their GTCCs for unauthorized purposes. d. He was again counseled by MSG V____, then received the NJP reading from his commander on 5 June 2014. He was surprised by this event in light of the previous counseling he received in 2013 and his self-repair, which included full repayment of the GTCC balance accrued from its unauthorized use. He voiced his surprise and concern about this delayed punishment to his leadership. He was advised that if he accepted the NJP, any punishment imposed would be suspended, the matter would be filed in the restricted folder of his OMPF, and the action would have no adverse impact on his military career if he did not reoffend or commit further misconduct. Based on these representations made to him by his commander, he elected to not demand trial by court-martial and instead accepted the NJP. His commander in turn suspended the punishment and directed filing the records of the proceeding in a restricted manner as he promised. e. He was unaware at the time he received notice of the NJP that if he both accepted it and the matter was filed in the restricted folder of his OMPF, that it would adversely affect his military career. Had he known otherwise, he would have exercised his right to demand trial by court-martial. After receiving notice at the reading, he was not afforded the opportunity to consult with counsel or given a 48-hour delay to decide whether he wanted to accept the NJP. He was not provided with a copy of the DA Form 2627 as required by regulation, nor was block 2 of the form read aloud to him. For all intents and purposes, the chain of command appeared confident that he would accept the punishment. f. Army Regulation 27-10 (Military Justice) discusses the intended purposes of NJP to "correct, educate and reform offenders" and to "preserve a Soldier's record from unnecessary stigma by record of court-martial conviction." It also discusses the importance of the filing decision, stating the commander "must weigh carefully the interests of the Soldier's career against those of the Army." In his case, his battalion commander elected to file his record of NJP in the restricted folder of his OMPF, thereby signaling his support of his continued military service and progression of his Army career. His battalion commander continues to support his retention and continued active duty service. g. The imposed punishment was never intended to stunt or otherwise torpedo his military career. Arguably, he would never have even received the NJP but for the actions of other noncommissioned officers in his battalion who engaged in the unauthorized use of their GTCCs. In response to this pattern of behavior, his commander imposed NJP against all of them equally. Because his actions occurred nearly 1 year prior to receiving the NJP and were disposed of via a negative counseling statement, he believes that he would never have received NJP had other noncommissioned officers not committed similar misconduct and, arguably, would not have been the subject of involuntary separation via the QMP. 9. U.S. Army Human Resources Command Orders D-08-590183, dated 18 August 2015, honorably discharged him from the USAR AGR effective 1 November 2015. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged from the USAR AGR on 1 November 2015 due to non-retention on active duty. REFERENCES: 1. Army Regulation 27-10 prescribes the policies and procedures pertaining to administration of military justice and implements the Manual for Courts-Martial. It provides that the 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 3-4 states a commander will personally exercise discretion in the NJP process by: (1) evaluating the case to determine whether proceedings under Article 15 should be initiated; (2) determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and (3) determining the amount and nature of any punishment, if punishment is appropriate. b. Paragraph 3-6 addresses filing NJP and provides that a commander's decision whether to file a record of NJP in the performance folder 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 folder. c. Paragraph 3-28 describes setting aside and restorations. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. 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 exists 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. d. Paragraph 3-43 contains guidance for transfer or removal of DA Forms 2627 from the OMPF. It states enlisted Soldiers in the ranks of sergeant and above and commissioned officers may request transfer of a record of NJP from the performance folder of their OMPF to the restricted folder by petitioning the Department of the Army Suitability Evaluation Board. Applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. The OMPF is an administrative record as well as the official permanent record of military service belonging to a Soldier. Appendix B-1 (Required Document List) is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or interactive Personnel Electronic Records Management System. Appendix B-1 also provides instructions regarding filing documents in the OMPF. 3. The Army Personnel Records Division updates the list of authorized documents for filing in the OMPF quarterly. The latest update, dated 14 November 2016, provides additional instructions regarding filing NJP under Article 15 of the UCMJ. For all Soldiers other than E-4 and below, 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 folder or the restricted folder in 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 any superior authority. However, the superior authority cannot direct filing an Article 15 in the performance folder if the imposing commander directed filing in the restricted folder. The imposing commander's filing decision will be indicated in item 4b of the DA Form 2627. A change in the filing decision should be recorded in item 8 of the DA Form 2627. DISCUSSION: 1. The applicant's request for removal of the DA Form 2627, dated 5 June 2014, from the restricted folder of his OMPF was carefully considered. 2. He was found to have wrongfully used his GTCC for personal use when not in a travel status to receive unauthorized cash advances and make unauthorized purchases on seven separate occasions. He does not dispute engaging in this misconduct and does not claim any factual error in the description thereof. 3. His battalion commander reviewed all the evidence presented in the Article 15 proceedings and found the applicant guilty of all specifications. He directed filing the DA Form 2627 in the restricted folder of his OMPF and his punishment consisted of forfeiture of $2,266.00 pay per month for 2 months, suspended for 180 days. 4. He expressed his concern about this delayed punishment to his leadership at the time he received the NJP and states he was advised that if he accepted the NJP, any punishment imposed would be suspended, the matter would be filed in the restricted folder of his OMPF, and the action would have no adverse impact on his military career if he did not reoffend or commit further misconduct. Based on these representations made to him by his commander, he elected to not demand trial by court-martial and instead accepted the NJP. 5. The evidence of record shows the imposed punishment was indeed suspended and the DA Form 2627 was in fact filed in the restricted folder of his OMPF, as indicated by the form itself and apparently as verbally conveyed by the imposing commander to the applicant. The commander's statement of support does not contain any indication that the NJP was either imposed in error or was not intended to be filed in the restricted folder of his OMPF. Once the NJP is correctly imposed and correctly filed in the OMPF, the NJP-imposing commander is not in a position to make assurances regarding any lack of potential adverse impact that NJP might have on a Soldier's future career, once seen by a QMP Board or any other higher echelon entity outside of his control, however well-intentioned those assurances are when made. 6. It is reasonable to conclude the commanding officer imposing the applicant's NJP exercised discretion in the NJP process based on the applicant's offenses and considered all mitigating factors, to include the applicant's guilt, the severity of the offenses, and his prior unblemished service. The record establishes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt. Additionally, there is no prohibition on the imposition of NJP several months after the acts of misconduct were committed. It appears the commander felt it appropriate to punish all culprits of GTCC abuse within the battalion in the same fashion, doling out justice equitably across the board. 7. The proceedings were reviewed by a judge advocate who, in signing the form, found they were conducted in accordance with law and regulation and that the punishment imposed was not unjust or disproportionate to the offense committed. 8. The applicant was afforded the right to consult with counsel, demand trial by court-martial, and to appeal the Article 15 through the proper channels, none of which he chose to exercise. Although he claims the reason he did not demand trial by court-martial was assurances by his commander that his career would not suffer by his acceptance of the NJP if he did not reoffend, there is no evidence suggesting he would have been found not guilty of the misconduct had he chosen to demand trial by court-martial. There is no evidence indicating the claims of misconduct were in any way factually erroneous, he did not commit the misconduct, or the punishment was unfair or unequitable. 9. The DA Form 2627 was appropriately filed in the restricted folder of his OMPF in keeping with regulatory guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015107 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015107 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2