IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20170008657 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 IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20170008657 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. IN THE CASE OF: BOARD DATE: 4 January 2018` DOCKET NUMBER: AR20170008657 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 the removal of DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 10 February 2016 from his official military personnel file (OMPF) and a personal hearing before the Board. 2. The applicant states: a. He received an Article 15 for allegedly stealing basic allowance for housing (BAH) from on or about 1 October 2013 to on or about 31 October 2014 while stationed at Camp Henry, Republic of Korea. He is currently a staff sergeant (SSG) and requests that the Article 15 be removed from his OMPF based on clear substantive and procedural errors. b. He had custody of his daughter since she was born. He was reassigned to Camp Henry on 10 October 2013 for an unaccompanied tour. His permanent change of station (PCS) orders authorized his daughter to live with his sister in Long Island, NY. c. In November 2013, his daughter's mother, to whom he was not married, took his daughter from his sister's house and took her to a undisclosed location. He could not obtain his daughter's whereabouts, so he went to the finance office to stop the BAH, but the finance clerk told him that the funds were for his dependent, and no change could take place without documentation; he was advised to handle the concern at his next duty location. d. He left the Republic of Korea on 10 October 2014, and his daughter's mother informed him that she was in Dallas, TX, so he picked up his daughter enroute to his next duty location, Fort Hood, TX. While in-processing, he went to finance to address the BAH situation. A debt manager told him that he would receive a letter stating how much BAH he owed the government and that once he received the letter, to return to finance for assistance with initiating recoupment arrangements. e. His leave and earnings statement (LES) for February 2015 showed his wages were garnished and he immediately returned to finance to see the debt manager. The debt manager reversed the process and realized the balanced owed was a miscalculation. The debt manager introduced a new debt balance where repayment would begin in March 2015. He found out later that the second BAH debt amount was also incorrect. His only recourse to resolve the actual debt balance was to submit a remission packet to the Defense Finance and Accounting Service (DFAS) on 11 May 2015. f. His commander initiated a 15-6 investigation concerning the BAH in December 2015. He explained to the 15-6 investigation officer that he did not steal the funds and that he was actively working to fix the issue. His company commander eventually recommended him for a field-grade Article 15 without affording him the opportunity to respond. g. His battalion commander read him the Article 15 on 10 February 2016. As punishment he was reduced to sergeant (SGT)/E-5 and received 45 days of extra duty, suspended, to be automatically remitted if not vacated on or before 10 May 2016. His battalion commander informed him he had five calendar days to appeal the non-judicial punishment (NJP). However, the day he had staff duty followed by a four-day weekend. Since post services were closed during long weekends, this meant he only had one day, the day he had staff duty, to gather documents. h. He spoke with an attorney on Tuesday, 16 February 2016. He explained to the attorney that he did not have time to gather enough documentation to submit a well-supported appeal to the NJP. He was granted a one-day extension, but no legal representation. He submitted the appeal of the NJP on 17 February 2016. The appellant authority reviewed the NJP, and suspended the reduction in rank to SGT. i. On 23 July 2016, he was notified of the intent to revoke his security clearance due to the BAH concern. However, he submitted an appeal on 12 September 2016, and his security clearance was reinstated. He is currently paying off the debt with DFAS. j. He did not intend to steal BAH from the government. From November 2013 through October 2014, his daughter's mother would not inform him where his daughter was living, so he could not update his BAH location. However, from the moment he realized that his daughter changed residences, he worked diligently to attempt to resolve the issue. The NJP was unjust and untrue as it failed to prove that he intended to steal BAH. Therefore it should be removed from his OMPF. k. Procedurally, he was not afforded an appropriate amount of time to seek the proper legal counsel to gather the necessary documents needed to prepare his appeal of the NJP; this renders the NJP unjust. l. The NJP was founded on substantive and procedural errors. He never intended to steal BAH funds and has provided clear and convincing evidence that he actively worked with multiple finance offices, between two different duty locations, from the moment he knew his daughter's residence changed. Additionally, he was not afforded the opportunity to gather the necessary supporting documentation or allowed to seek proper legal counsel, all of which render the Article 15 untrue and unjust. He respectfully requests the Article 15 be removed from his OMPF. 3. The applicant provides: * self-authored statement, dated 1 March 2017 * LESs for the periods 1 – 31 March 2015, 1 – 28 February 2016, and 1 – 31 January 2017 * excel sheet showing debt collection totals * recommendation for repayment options memorandum, dated 1 May 2015 * DA Form 2627, dated 10 February 2016 * self-authored memorandum for record (MFR), dated 16 February 2016 * two character witness statements * self-authored security clearance revocation rebuttal, dated 12 September 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 4 January 1999. He was promoted to his current rank of SSG on 1 June 2008. 2. The applicant's record shows he served in the Republic of Korea from on or about 10 October 2013 to on or about 9 October 2014. After which, he was reassigned to his current unit, the 259th Movement Control Team, 49th Transportation Battalion, Fort Hood, TX. 3. Criminal Investigation Command (CID) Form 94 (Agent's Investigation Report), dated 23 September 2015, shows an investigation was initiated because it was believed that the applicant obtained unauthorized BAH while he was stationed in Korea from October 2013 to October 2014. a. A CID special agent interviewed the applicant's sister, who stated, while he was stationed in Korea, his daughter did not stay at her residence in NY at any time. His sister did not know where his daughter was residing during his time in Korea, and that she never met his daughter. His sister said he did go to visit her in NY when he returned from Korea, but his daughter was not with him. b. The CID special agent interviewed the applicant's father, who stated, that during the time his son was in Korea, his granddaughter did not stay with him, and that was not sure where his granddaughter was living during the time in question. c. The CID special agent interviewed the applicant's daughter biological mother, who stated, that his daughter was with her during the entire time of his service in Korea. 4. CID Form 94, dated 19 November 2015, shows that on or about 18 November 2015, the CID special agent advised the applicant of his rights, which he waived and provided a verbal statement. The applicant stated: a. The original plan for when he deployed to Korea was to have his daughter live with his family in Brooklyn, NY. His family was not able to take care of his daughter, so he sent her to live with her biological mother. b. He found out where his daughter was living in December 2013, and did not make any attempts to fix the issue with DFAS concerning the incorrect payment of BAH he was receiving. c. He stated he did not make an effort to try and know the exact address of his daughter during his time in Korea. He knew it was his responsibility as a Soldier to get the required information, and provide it to the military to get his finances correct. d. He knew that the amount of BAH he was receiving was incorrect, and that the information he wrote on a DA Form 5960 (Authorization to Start, Stop or Change Basic Allowance for Quarters (BAQ), and/or Variable Housing Allowance (VHA)) was also incorrect. He did not save the money he knew he was not supposed to receive and instead spent it on bills and other expenditures. He stated it was DFAS that made the mistake and that he had no intention of defrauding the government. The CID special agent subsequently notified his company commander about the BAH concern. 5. The applicant's record shows he received an adverse action suspension of favorable actions (Flag) on 17 December 2015, resulting from the initiation of a commander's investigation. 6. A DA Form 4856 (Developmental Counseling Form), dated 17 December 2015, shows his company commander counseled him for falsifying government documents, and for conduct unbecoming of a noncommissioned officer. * the commander noted the estimated debt he owed to the government * it was determined he knew he falsified his BAH documents * it was determined he knew his daughter resided at another location different from where he was receiving the BAH * the commander informed him that he was recommending him for a field-grade Article 15 * the applicant disagreed with the counseling; however he did not provide remarks 7. A DA Form 2627, dated 10 February 2016, shows the applicant received a field-grade Article 15 for violation of Article 121 of the UCMJ for stealing BAH in the amount of $21,204 from on or about 1 October 2013 through on or about 31 October 2014. As punishment he received a reduction to SGT; extra duty for 45 days, suspended, to be automatically remitted if not vacated on or about 10 May 2016. He appealed the NJP. 8. On 4 March 2016, the appellant authority considered the appeal and granted an appeal of the following: reduction to SGT, suspended to be automatically remitted if not vacated on or before 8 August 2016; and extra duty for 45 days, suspended to be automatically remitted if not vacated on or before 10 May 2016. A legal review of the proceedings was completed that same day and it was determined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed. 9. On 11 October 2016, the applicant was notified that he was being considered for separation by the Qualitative Management Program (QMP) Board on 7 February 2017 as result of the contested Article 15. 10. On 3 April 2017, the applicant was notified that he was selected for involuntary separation by the QMP Board. He was informed that he was approved for an involuntary discharge date from the Army of 1 November 2017, or request an earlier separation date. He was also informed that he could request a voluntary retirement date, which would be no later than 1 February 2019. 11. The applicant provides: a. A recommendation of repayment option, dated 1 May 2015, shows a brigade level commander recommended that he not be held liable for debt accrued, and that he acted in good faith while following the instructions of a finance office clerk and provided the documentation requested from him regarding his dependent status. b. A MFR, dated 16 February 2016, that shows he appealed the contested Article 15, and stated to the appellant authority: * he made numerous attempts to resolve the matter starting in Korea * he had all intentions of repaying the debt and went to finance after arriving at Fort Hood, the process went on for eight months before the investigation was initiated * he did not steal anything, he was trying to get the correct amount he owed * his actions with this matter did not warrant the perception of his character; he did not intentionally steal or tried stealing; and he showed his integrity by bringing forward trying to do the right thing * his efforts has gone unnoticed and he was being penalized for his honesty * he compiled his bills and noticed that a reduction in rank would place him in over $600 in debt monthly c. Two character witness statements by former coworkers who attested to his adherence of the Army values. d. A rebuttal, dated 12 September 2016, to a notification to revoke his security clearance. In the rebuttal, he stated: * his daughter stayed with his other sister in Long Island, NY, who assumed the role of a guardian * his sister notified him that his daughter's mother picked her up; he tried to get their location form the mother, but she would not let him know * he went to finance to get the BAH location changed, but he was unable because he did not have his daughter's new location to stop the BAH * he has made payments since 1 April 2016 * he had no misconduct for 17 years * he kept the BAH money for NY in an account for the entire time while he was in Korea; all he wanted finance to do was tell him how much he owed so that he could repay it REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. 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. a. It provides that a commander should use nonpunitive 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 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. b. Paragraph 3-28 describes the setting aside of punishment and restoration of any rights, privileges, or property affected by the portion of the punishment set aside are restored. (1) 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 the findings in a particular case. (2) 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. (3) Clear injustice means that there exists an un-waived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldiers. An example of a clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. (4) 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. (5) Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. DISCUSSION: 1. The applicant requests the removal of the contested Article 15 from his OMPF. He contends that the NJP was founded on substantive and procedural errors, and that it was unjust and untrue. 2. The imposing commander's function is to make a decision as to whether or not a Soldier committed the offense in question. These decisions will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence or they failed to follow the applicable regulations. 3. The evidence of record confirms the contested Article 15 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). 4. The evidence of record confirms the applicant was given the right to trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels. He waived his right to trial by court-martial, and requested an appeal. 5. The appellate authority considered his statement describing the circumstances surrounding the BAH debt, and the hardship he would face if reduced from SSG to SGT. The appellate authority suspended a portion of the punishment in reference to reduction to SGT for 180 days; the appellate authority did not set aside any of the findings in his case. 6. The applicant did not provide evidence that clearly exonerates him of the charge of stealing BAH listed on his NJP, or that the imposing commander violated the UCMJ in anyway during the NJP proceedings. 7. The applicant provided a self-authored statement in which he contends he did not intentionally commit the offense; however, his verbal statements recorded on the CID forms show otherwise. Regulatory guidance prescribes that a Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 8. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170008657 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2