ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2019 DOCKET NUMBER: AR20160016319 APPLICANT REQUESTS: removal from his official military file (OMPF): * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)) * Letter of Reprimand * any records that pertain to his command referral to the Army Substance Abuse Program (ASAP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 6 March 2019 * Letter of Representation From X, Esquire (Esq.) * Brief in Support of Application for Discharge Upgrade * Exhibits 1-34 (description in “Facts” below) * DD Form 149, dated 23 August 2016 * Request for Correction of Another Person’s Military Records * Table of Content * Exhibits A-Z.6 (description in “Facts” below) FACTS: 1. The applicant, through his legal representation, states he submits this application to correct his records to remove portions of his military records that reference an incident in September 2013 that ultimately led to the applicant receiving nonjudicial punishment (NJP). This request is made for reasons of material error and material injustice. In effect, the applicant requests the NJP and its punishment be set aside. a. The applicant was stationed in the U.S. Army Garrison (USAG) Yongsan, U.S. Forces Korea and had a Command Policy that enforced a curfew for all service members. USAG Yongsan Military Police (MP) received a radio notice of a possible curfew violation by two service members and responded to the call. The two individuals allegedly started walking briskly or running in the opposite direction of the MPs. The MPs caught the two Servicemembers and identified them as the applicant and his friend, Captain (CPT) X. The police report states the applicant resisted arrest. The two service members were taken into custody, the applicant gave a sworn statement denying he intended to run from the MPs. His blood alcohol content was .130%. The applicant was processed by the MPs and released to his unit later that morning. b. As a result of this incident, the applicant was charged with violating curfew, resisting arrest, false official statement, assault, and conduct unbecoming an officer and a gentleman. The applicant received NJP on 15 October 2013 and was found guilty of each offense except for violating curfew. The punishment he received included forfeiture of pay in the amount of $2,680.00 per month for two months, which was suspended, and received a written reprimand. The NJP was subsequently filed in the applicant's performance section of his OMPF. The applicant was command referred to the ASAP because of the alcohol-related incident. As a result of the receipt of NJP and the letter of reprimand, the applicant's military career was put in serious jeopardy during the 2014 Officer Separation Board (OSB), per Military Personnel (MILPER) Message Number 13-356 (Fiscal Year 2014 (FY14) Officer Separation Boards (OSB) and (Enhanced) Selection Early Retirement Boards (E-SERB), Captain (CPT), Army Competitive Category (ACC)). c. On 20 June 2014 the applicant received a memorandum notifying him that had been selected for separation from the Army under 10 U.S.C. § 638a. The applicant requested a transfer to the U.S. Army Reserves (USAR) but was denied by the Department of the Army Officer Accessions Branch on 30 September 2014. He was discharged on 1 April 2015. He served a total of 8 years, 10 months, and 1 day. d. The applicant requests that his records corrected to remove portions of his OMPF that reference an incident in September 2013 that ultimately led to him receiving NJP and letter of reprimand. When the totality of the circumstances are reviewed in this case it becomes clear that the applicant's overall punishment was unjust within the unambiguous language of AR 15-185 (Army Board for Correction of Military Records). Thus, the applicant's request for relief should be granted and the derogatory information in his OMPF and restricted fiche should be removed, specifically the NJP, letter of reprimand, and any records that pertain to his command referral to ASAP. 2. The applicant provides: * DA Form 149, dated 6 March 2019 * letter of representation * brief in support of application for discharge upgrade * exhibit 1 - United States Forces Korea (USFK) Command Policy, General Order Regarding Off-Installation Curfew * exhibit 2 – DA Form 3975 (Military Police Report) * exhibit 3 - DA Form 2627 * exhibit 4 - Memorandum from U.S. Army Human Resources Command (HRC) for notification of selection under the provisions of 10 U.S.C. § 638a * exhibit 5 - Memorandum from HRC for denial of selection for USAR Appointment * exhibits 6-12 - DA Form 2823 (Sworn Statement) from X., X., X., X., X., X, X. * exhibit 13 - map of approximate location of incidents * exhibit 14 - DA Form 214 (Certificate of Release or Discharge from Active Duty) * exhibits 15 and 19 - DA Form 1059 (Service School Academic Evaluation Report), through date 22 February 2007 and 31 August 2010 * exhibits 16-18, 20-23 - DA Form 67-9 (Officer Evaluation Report) through date 23 March 2008, 23 March 2009, 11 March 2010, 16 June 2011, * 16 June 2012, and 16 June 2013 * exhibit 24 - DA Form 638 (Recommendation for Award) * exhibits 25-31 - certificates of completion of training for Command Inspection Program FY 2016, Basic Officer Leader Course, Airborne Course, Adjutant General Captains Career Course, Technical Transportation of Hazardous Materials Course, Combat Lifesaver Course, Unit Movement Officer Development Course, and Toxic Agent Training * exhibit 33 – letters of character reference from X., X., X., X., X., X., X., X., X, X., X., X., X., X., X., X. * exhibit 34 – resume * DA Form 149, dated 23 August 2016, sent by SGM(R) N.D. * memorandum requesting correction of another’s military records * table of contents * exhibit A – General Order Regarding Off-Installation Curfew * exhibit B – DA Form 2627 * exhibits C-E, G-H, and O – DA Form 2823 for X., X., X., X., X., X. * exhibit F – memorandum for record from R.B. * exhibit I – DA Form 3975 * exhibit J-K, N, Q-R and U-V – excerpts of Rules for Courts-Martial (R.C.M.), Article 95 (Resistance, Breach of Arrest, and Escape), R.C.M. 302 (Apprehension) (b)(1), R.C.M. 303 (Preliminary Inquiry Into Reported Offenses), R.C.M. 307 (Preferral of Charges) (c)(3), paragraph 9(D)(ii-iii) (Date and Time of Offense), R.C.M. 306 (Initial Disposition) (b) Discussion, R.C.M. 307(c)(4), and R.C.M. 306(b) Discussion * exhibits L, and S-T – excerpts USFK Regulation (Reg) 190-50 (Law Enforcement Procedures in Korea), paragraph 1-11.C.3., paragraph 2-1.E.1, and paragraph 2-1.E.5 * exhibit M –statement from X. X. * exhibit Mc –email from applicant’s Korean lawyer regarding potential witness * exhibit P – map/story board of the apprehension * exhibit W – DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report), through date 24 June 2014 and DA Form 67-9, through date 31 January 2014, 16 June 2013, 16 June 2012, 16 June 2011, and 11 March 2011 * exhibit X - DA Form 638 * exhibit Y - letters of character reference from X (2)., X (2)., X. (2), X. (2), X.(2), X. (2), X (3), X. (3), X (3), X. (2), X. (3), X. (2X. (2), X (3)., X. (2), X. (2), X., X., X., X., X., X. * exhibit Z.1 – Letter of Reprimand * exhibit Z.2 - Memorandum from HRC for denial of selection for USAR Appointment * exhibit Z.3 - Memorandum from HRC for notification of selection under the provisions of 10 U.S.C. § 638a * exhibit Z.4 – resume * exhibit Z.5 – Officer Record Brief (ORB) * exhibit Z.6 – excerpt of Army Regulation (AR) 15-185 (Army Board for Correction of Military Records), chapter 2 (General), section II (Application Procedures), paragraph 2-3(c) (Who May Apply) 3. A review of the applicant’s service record shows: a. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army on 27 May 2006. He entered active duty on 31 May 2006. b. He was assigned to Fort Riley, KS from 16 April 2007-19 October 2010, with service in Iraq from 8 October 2008 to 18 September 2009. He was subsequently assigned to Camp Humphreys, Korea from 20 October 2010 to 24 June 2013. His final assignment was to Yongsan, Korea from 25 June 2013 to 19 January 2015. c. On 3 September 2013, MPs in USAG Yongsan were notified of a possible curfew violation of two individuals who appeared to be Servicemembers. Those two men were identified as the applicant and R.B. The two individuals began to run after spotting the MPs. The MPs were able to catch up to both individuals and attempted to place them under apprehension. The applicant resisted being placed under apprehension and struck the MP several times in the ribs before being subdued and placed in hand irons. They were transported to the provost marshal office. The applicant was administered a portable breath test which resulted in a .130% blood alcohol content. The applicant was advised of his legal rights, which he waived, rendered a written statement denying the offenses, and released to his unit. d. On 19 September 2013, the applicant was notified the commander was considering whether he should be punished under Article 15, UCMJ for one specification of failing to obey a lawful general order, one specification of resisting apprehension, one specification of fleeing apprehension, one specification of making a false official statement, one specification of assaulting a military police, and one specification of conduct unbecoming an officer and a gentleman. He was afforded the opportunity to consult with legal counsel. On 15 October 2013, he elected the following rights: * not to demand trial by court-martial * a closed hearing * no person to speak in his behalf * matters in defense, extenuation, and/or mitigation were attached to the record and were presented in person e. On 15 October 2013, the applicant was found guilty for one specification of resisting apprehension, one specification of fleeing apprehension, one specification of making a false official statement, one specification of assaulting a military police, and one specification of conduct unbecoming an officer and a gentleman. His punishment included forfeiture of $2,680 pay per month for two months, suspended for 90 days and a written reprimand. The official NJP record was directed to be filed in the performance section of his OMPF. The applicant elected not to appeal. f. On 15 October 2013, he received a letter of reprimand from Lieutenant General BC as punishment under Article 15, Uniform Code of Military Justice. It was filed as part of his NJP and the supporting documents. The letter reads: The applicant was reprimanded for fleeing apprehension, resisting arrest, assaulting a military policeman in the execution of his duties, making a false official statement, and being drunk and disorderly. On or about 3 September 2013, he fled from military police who were attempting to stop him for a suspected curfew violation. When they finally caught up with him, he fought with them, assaulting one in the process, and would not cooperate until he was subdued and put into hand irons. Afterwards, he was questioned about the incident and made a sworn statement in which he stated that he did not run from the military police, assault one of the officers, or attempt to escape. His actions are a severe departure from the professional conduct expected of a commissioned officer. As a commissioned officer, he must set the example for his Soldiers to emulate. He failed to live up to this standard and caused the imposing general officer to question his judgment and integrity. g. On 20 June 2014, he received a letter from HRC notifying him of his selection for separation under the provisions of 10 USC § 638a. The notification stated he would be separated on 1 April 2015. h. On 30 September 2014, he received a letter from HRC denying his application for a USAR appointment based on the established eligibility requirements. i. On 1 April 2015, he was discharged from active duty under the provisions of AR 600-8-24 (Personnel-General - Officer Transfers and Discharges), chapter 5 (Miscellaneous Types of Separations), and issued an honorable discharge. His DD Form 214 reflects that the completed 8 years, 10 months, and 1 day of active service j. On 24 April 2019, the Case Management Division, Army Review Board Agency (ARBA) requested a redacted Criminal Investigation Division (CID)/MP Report for the applicant. On 8 May 2019, CID released a redacted copy of DA Form 4833 in compliance with the said request. On 7 June 2019, a letter was sent to the applicant affording him the opportunity to submit comments on the advisory opinion. The applicant’s counsel, in response, stated the CID report did not change the arguments presented. 4. By regulation (AR 27-10), 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. Nonjudicial punishment 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 UCMJ, Art. 15. 5. By regulation (AR 600-8-104), once properly filed in the Army Military Human Resource Records Management, documents will not be removed from the record unless directed. Both an Article 15 and a GOMOR are filed in the performance section of the OMPF, unless directed otherwise by the imposing commander/officer. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s counsel contentions and letters of support were carefully considered. The evidence of record shows the applicant received the contested Article 15 and it was filed in his OMPF. During the NJP process he was given the right to trial by court-martial and was afforded the opportunity to appeal the Article 15 through the proper channels. He waived his right to trial by court-martial and did not request an appeal. The imposing commander considered the evidence and determined the applicant committed the offense in question. By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the charged offense(s). The imposing commander's determination of guilt will not be upset by the ABCMR unless the Board determines the commander's determination was unsupported by the evidence or he or she failed to follow applicable regulations. Based upon the preponderance of evidence, the Board agreed there was no error or injustice in this case. Regulatory guidance states that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority, such as this Board. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Army Regulation (AR) 27-10 (Military Justice), in effect at the time, prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM) and the rules for courts-martial contained in the MCM. a. Paragraph 3-28 (Setting Aside and Restoration), states 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. Nonjudicial punishment (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 UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier’s records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. “Clear injustice” means that 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. Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. b. Paragraph 3-42 (Transfer of Punishments Wholly Set Aside or Changes of Status) states all DA Forms 2627 of commissioned officers and enlisted Soldiers filed in the OMPF reflecting that punishments have been wholly set aside since 1 September 1979, will routinely be transferred to the restricted section. The DA Form 2627 reflecting the original imposition of punishment, if filed in the military personnel records jacket, career management individual file, or unit nonjudicial punishment or unit personnel files will be destroyed. c. Paragraph 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) states enlisted Soldiers (SGT and above) and commissioned officers may request the transfer of a record of nonjudicial punishment from the performance section of their OMPF to the restricted section under the provisions of this regulation. To support the request, the person must submit substantive evidence that the intended purpose of UCMJ, Article 15 has been served and that transfer of the record is in the best interest of the Army. Requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)), in effect at the time, outlines responsibilities for the archiving and storage of data, information, and documents required for filing in the AMHRR. Once properly filed in the AMHRR, the document will not be removed from the record unless directed by one of the following: a. Boards of the Army Review Boards Agency such as the Army Board for Correction of Military Records (ABCMR), Army Discharge Review Board, Department of the Army Suitability Evaluation Board, Army Special Review Board, and the DOD Physical Disability Review Board. b. The U.S. Army Physical Disability Agency for physical evaluation board documents only. c. The Chief, Appeals and Corrections Section of the Evaluations, Selections, and Promotions Division. d. The ORC for administrative purposes; this includes, but is not limited to deleting or moving mistakenly filed documents from the performance or service folder to the restricted folder and vice versa. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016319 8 1