ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20180010858 APPLICANT REQUESTS: a. correction of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 May 2017, to show findings of not guilty of all specifications; b. reinstatement of his rank/grade to staff sergeant (SSG)/E-6; and c. reinstatement in the Regular Army. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 15 and 21 November 2017 * Memorandum, Applicant, dated 21 November 2017, subject: Memorandum of Request for Consideration * Memorandum, Applicant, dated 21 November 2017, subject: Chronological Order of Events * Orders 17277-7, Headquarters, U.S. Army Maneuver Center of Excellence (MCOE), Fort Benning, GA, dated 3 October 2016 (permanent change of station (PCS)) * Email, Travel Risk Planning System Risk Assessment, dated 29 November 2016 * DA Form 31 (Request and Authority for Leave), dated 29 November 2016 (not approved) * Email, dated 3 January 2017, subject: Post Clearing Papers * Fort Benning, GA, Post Clearing papers, dated 6 January 2017 * National Weather Service, dated 6-7 January 2017 Winter Storm * Email, Applicant, dated 6 February 2017, subject: Military Household Goods (HHG) Relocation (Applicant) * DA Form 31, dated 13 February 2017 (altered) * Defense Finance and Accounting Service (DFAS) Form 702 (Leave and Earnings Statement), dated February 2017 * DA Form 2823 (Sworn Statement), dated 24 February 2017 * DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 3 March 2017 * Email, Applicant, dated 3 March 2017, subject: (Applicant) * DA Form 4856 (Developmental Counseling Form), dated 29 March 2017 * UCMJ Legal Cover Sheet, dated 29 March 2017 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 30 March 2017 * Enlisted Record Brief (ERB) with flag, dated 30 March 2017 * Memorandum, U.S. Army Trial Defense Services, dated 13 April 2017, subject: Request to Grant an Extension of Time to Prepare Matters in Defense, Extenuation, and Mitigation – (Applicant) * DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 18 April 2017 * Carlson Wagonlit Airlines Refund Receipt, dated 19 April 2017 * Email, Sergeant (SGT) O____ S____, Fort Drum Reception Activity, dated 19 April 2017 * Email, Defense Attorney, dated 28 April 2017 * Memorandum, U.S. Army Trial Defense Services, dated 28 April 2017, subject: Request to Rescind, or to Find Not Guilty, or to Suspend the Nonjudicial Punishment, in the Alternative – (Applicant) * Medical Documents, Samaritan Medical Center, dated 3-11 May 2017 * Memorandum, U.S. Army Trial Defense Services, dated 16 May 2017, subject: Appeal from Findings and Sentencing of the Lower-Level Commander, and the Accused's Request to find Him NOT Guilty and Restore His Rank – SGT (Former SSG) (Applicant) * Email, Applicant, dated 19 May 2017, subject: Article 15 (Applicant's) Rebuttal Packet * Letter, Headquarters, MCOE, dated 16 October 2017 (Congressional response) * Congressional Privacy Consent Release Form, dated 7 November 2017 * Congressional Privacy Consent Release Form, dated 13 November 2017 * Email, Applicant, dated 16 November 2017 * DA Form 1599 (Inspector General Action Request), dated 30 November 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 December 2017 * Letter, Headquarters, MCOE, dated 20 December 2017 (Congressional response) * Congressional Privacy Consent Release Form, dated 3 May 2018 * Letter, Applicant, dated 4 June 2018 REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers), establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. a. Paragraph 1-11 states in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)), a suspension of favorable personnel actions (flag) must be initiated against a Soldier when military or civilian authorities initiate any investigation or inquiry that may result in disciplinary action or loss of the Soldier's rank, pay, or other privileges. If the appointing authority possesses evidence, before directing the inquiry or investigation, indicating that a Soldier involved is a subject or suspect, or may receive disciplinary action, the appointing authority will ensure the Soldier's commander flags him or her. Inquiry officers and IOs must notify the appointing authority and the Soldier's COMMANDER, when a flag is required due to a Soldier becoming a suspect or subject during the course of an inquiry or investigation. A suspect or subject of an inquiry or investigation is not a designated respondent, and the procedural requirements set forth in chapter 7, section II, of this regulation do not apply. b. Paragraph 2-7 (Legal Review) states: (1) The approval authority will obtain a legal review of all investigations and boards directed under this regulation from his or her servicing staff judge advocate or legal advisor. (2) The legal review should only be completed after a comprehensive review of the report of investigation by the investigating officer's legal advisor, and it should ensure that the investigation does not raise questions that it leaves unanswered; anticipates future uses of the investigation; resolves internal inconsistencies; makes appropriate findings; and makes recommendations that are feasible, acceptable, and suitable. Specifically, the legal advisor performing the legal review will determine: (a) Whether the proceedings complied with legal requirements, including the requirements established in the appointing memorandum; (b) Whether there are errors and, if so, whether the errors are substantial or harmless; the effect, if any, that the errors had on the proceedings; and, what action, if any, is recommended to remediate the errors (see paragraph 3-20); (c) Whether the findings of the investigation or board, or those substituted or added by the approval authority, are supported by a greater weight of the evidence than supports a contrary conclusion (see paragraph 3-10b); and (d) Whether the recommendations are consistent with the findings. c. The legal review should also advise the approval authority whether the evidence supports any additional relevant findings, or suggests that additional investigation is appropriate to address additional concerns. d. The legal review will be conducted in writing and included as part of the investigative or board report. The legal review should be appropriately marked as attorney work product and/or client advice, which is legally privileged and exempt from release under Freedom of Information Act. e. Whenever possible, the legal advisor designated to support the investigation or board will not conduct the legal review. f. Paragraph 3-7d (Rules of Evidence and Proof of Facts – Limitations) states although administrative proceedings governed by this regulation generally are not subject to exclusionary or other evidentiary rules precluding the use of evidence, the following limitations do apply: (1) "Off the record" statements. Findings and recommendations of the IO or board must be supported by evidence contained in the report. Accordingly, witnesses will not make statements "off the record" to the IO or board members. Under the administrative investigation procedure, such statements will not be considered for their substance, but only as help in finding additional evidence. (2) Ordering witnesses to testify. A Soldier who is suspected of an offense under the UCMJ will be advised of his or her rights under Article 31, UCMJ, before being asked any questions concerning the suspected offense. The Soldier, whether a witness or respondent, will be given a reasonable amount of time to consult an attorney, if requested, before answering any such questions. No adverse inference will be drawn against witnesses or respondents who invoke their rights under Article 31, UCMJ, or the Fifth Amendment. The IO or board should use a DA Form 3881 to explain the rights and to memorialize the explanation and the suspect's decision. g. Section III, paragraph 3-12, states a DA Form 1574-1 (Report of Proceedings by IO) will be used, but the IO may make his or her findings and recommendations in an attached memorandum. The DA Form 1574-1 and any enclosures and exhibits will constitute the report of the proceedings. h. Appendix C-3 (Conducting the Investigation) states for paragraph C-3d (Rights Advisement), all Soldiers and civilian personnel suspected of criminal misconduct must be advised of their rights before being questioned. A DA Form 3881 should be used to record whether the witness understands his or her rights and whether the witness elects to waive those rights and make a statement. In some cases, it may be necessary to provide the rights warning at the outset of the interview. In other cases, however, an IO will become aware of the witness's involvement in criminal activity only after the interview has started and incriminating evidence is uncovered. In such case, rights warnings must be provided as soon as the IO suspects that a witness may have been involved in criminal activity. If a witness elects to assert his or her rights and requests an attorney, all questioning must cease immediately. 3. 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 (MCM), United States, 2008, and the rules for courts-martial contained in the MCM. a. Paragraph 3-2 states a commander should use non-punitive measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment (see paragraph 1d(1), part V, MCM, 2008). Use of nonjudicial punishment is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. If it is clear that nonjudicial punishment will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for nonjudicial punishment to have the proper corrective effect. Nonjudicial punishment may be imposed to: (1) correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; (2) preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and/or (3) further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. b. Paragraph 3-18l states punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s). If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier. The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed. 4. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) prescribes Army policy for flagging functions of the military personnel system. a. Paragraph 2-2 states for "commander's investigation" (flag code L), commanders must flag Soldiers who are suspects or subjects of an investigation or are designated as respondents in a board. The term "investigation" is to be interpreted broadly to include any action that may result in disciplinary action, financial loss, or other loss to the Soldier's rank, pay, or privileges. Examples of investigations include, but are not limited to, commander's inquiry, financial liability investigation of property loss, and Army Regulation 15-6 investigations. If the IO finds reason to suspect a Soldier who was not originally identified as a suspect, subject, or respondent, the commander must be notified and must flag that Soldier as well. Examples triggering flag code L include, but are not limited to, a Soldier who is a witness in an investigation but later becomes a suspect, or when an investigation has no identified respondent but later the investigating officer finds reason to suspect a Soldier may be subject to disciplinary action. Effective date of the flag is the date of offense, the date the commander directs the investigation, the date the commander appoints an IO, or the date the IO suspects the Soldier may be subject to disciplinary action. b. Paragraph 2-4 states the effective date of a flag, unless otherwise specified in this regulation, will be the date the circumstance(s) requiring the flag occurred, not the date the flag was initiated (for example, if the circumstance occurred on the 25th of March, but the flag was not initiated until the 3rd of April, the effective date of the flag would still be the 25th of March). c. Paragraph 2-5 states unless otherwise specified in this regulation, only commanding officers, commandants, an officer/civilian with specific authority to sign "For the Commander" (for example, battalion or higher executive officer, deputy commander, or adjutant), or Headquarters, Department of the Army, general officer principle staff heads or their designee may authenticate a DA Form 268. Failure to counsel within prescribed times does not invalidate the flag. 5. Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operating tasks for the leave and pass function of the military personnel system. Paragraph 4-3 (Rules to Request Ordinary Leave) states: a. Soldiers are authorized, on the average, to take 30 days of leave a year. (Commanders may grant more than 30 days if operationally feasible.) b. Ordinary leave is a chargeable leave granted in execution of the commander's annual leave program (paragraphs 2-2 and 4-1). c. The unit commander or designee is the approval authority for ordinary leave requests. 6. The Joint Travel Regulations implement policy and laws establishing travel and transportation allowances of uniformed service members and Department of Defense civilian travelers. Section U3025 (Travel Time), in effect at the time, prescribed rules governing PCS travel and stated that generally, 1 travel day is allowed for each 350 miles of official distance of ordered travel. If the excess distance is 51 or more miles after dividing the total official distance by 350, 1 additional travel day is allowed. When the total official distance is 400 or fewer miles, 1 day of travel time is allowed. 7. Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-39, states noncommissioned officer (NCO) evaluation reports (NCOERs) are required if the rated NCO has completed at least 90 calendar days in the same position under the same rater during the same rating period. 8. Army Regulation 635-8 (Separation Processing and Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or the custody and control of the Army. It establishes standardized policy for preparation of the DD Form 214. The DD Form 214 provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of separation. The information entered thereon reflects the conditions as they existed at the time of separation. The detailed instructions state: * for blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade), verify the active duty grade or rank and pay grade are accurate at the time of separation * for block 12i (Effective Date of Pay Grade), enter the effective date of promotion or reduction to the current pay grade from the most recent promotion document or reduction instrument FACTS: 1. The applicant states he received field grade nonjudicial punishment under the provisions of Article 15, UCMJ, on 2 May 2017 for forging a Government document. a. The original unapproved DA Form 31, dated 29 November 2016, requesting 8 days of PCS leave with control number DM-17-0318 was confirmed by Captain (CPT) M____ C. C____ in his sworn statement, dated 24 February 2017. CPT C____'s sworn statement was used to find the applicant guilty of all specifications for "altering a government document." CPT C____'s sworn statement conflicts with the information provided in a Congressional complaint rebuttal by Colonel (COL) A____ C____, Jr., Chief of Staff, MCOE, dated 8 November 2017. COL C____'s statement to Congress states the applicant signed out with a DA Form 31 with control number DM-17-0204. b. On 3 March 2017, he received a rights warning/waiver certificate administered by CPT K____ M. C____, Army Regulation 15-6 IO, and witnessed by Sergeant First Class (SFC) P____ S____, for allegedly forging a government document. The IO and SFC S____ failed to sign the DA Form 3881 and did not conduct or complete a proper investigation in accordance with Army Regulation 15-6. The DA Form 3881 was later used to find him guilty of all specifications under the UCMJ. c. He was reduced in grade from SSG/E-6 to SGT/E-5 and was charged the full amount of leave. His retention control point changed due to the reduction in grade, which caused him to reach his expiration term of service. As an SSG/E-6, he was competing for SFC/E-7 in an indefinite career status. The mechanics of this case stem from toxic leadership, "off-the-record" statements made by Command Sergeant Major (CSM) S____ L____, 2d Battalion, 87th Infantry Regiment, which reflect great impartiality against him and unlawful tactics. d. He believes that since he was charged for PCS leave and was forthcoming about altering his DA Form 31, he did not see the need to be investigated. e. In accordance with Army Regulation 15-6, it does not require that all informal investigations receive a legal review. The appointing authority, however, must get a legal review of all cases involving serious or complex matters where the findings and recommendations may result in adverse administrative action or will be relied upon in actions by higher headquarters. A legal review will determine the effects of any errors in the investigation. The investigation did not address all issues (including systemic breakdowns; failures in supervision, oversight, leadership, accountability for errors; and other relevant areas of inquiry) raised directly or indirectly by the appointment. "Off-the- record" statements cannot be used to support investigations. f. The investigation is missing a DA Form 1574-1 and signatures from the IO and witness on the DA Form 3881. He was never flagged for a commander's investigation and the DA Form 268 used to initiate adverse actions against him has the wrong effective date of 29 March 2016 from the previous year. 2. Headquarters, MCOE, Orders 17277-7, dated 3 October 2016, ordered the applicant's PCS from Fort Benning, GA, to Fort Drum, NY, with a reporting date of 10 January 2017. 3. The applicant provided his original unapproved DA Form 31, dated 29 November 2016, showing he requested 8 days of leave from 3 through 10 January 2017. The DA Form 31 is signed by the applicant, his supervisor, and the company commander. The supervisor did not check the box indicating approval or disapproval. The applicant states he turned in his DA Form 31 and risk assessment on 29 December 2016. This DA Form 31 shows control number DM 17-0318. The control number is not readable on the copy of the DA Form 31 in the applicant's packet. 4. The email confirmation of the applicant's out-processing packet is dated 3 January 2017 (Tuesday). He received his PCS out-processing packet 36 days after his original unapproved DA Form 31 was signed. This was the same day he was scheduled to begin leave. There were four civilians, SFC A____ F____, and CSM R____ S. D____ addressed in the email. 5. His post clearing papers, printed 6 January 2017 (Friday), indicates him out- processing Fort Benning. 6. The inclement weather warnings and advisories, dated 6-7 January 2017, show there was a national weather advisory issued for the east coast due to inclement weather during the winter storms. 7. The applicant states his DA Form 31 still was not marked approved or disapproved on 6 January 2017 and no deferments or extensions were granted by the chain of command, despite hazardous weather. 8. The applicant states he purchased an airline ticket from Carlson Wagonlit located at Fort Benning, GA, on 6 January 2017. 9. The applicant states his flight from Atlanta, GA, to Fort Drum, NY, on 10 January 2017 was canceled. 10. The applicant states he called the emergency hotline for his DA Form 31 on 11 January 2017 to explain his situation to see if he could receive an extension. He was told that he was in an in-transit status and amendments to orders could not be made without a processing administrator to reissue changes to his original orders. He also called the infantry branch manager at the U.S. Army Human Resources Command to see if any changes could be made to his orders due to various issues concerning inclement weather, HHG, and canceled flights. He was told no amendments could be made because of his in-transit status. 11. The applicant states he decided to wait for his HHG to be packed on 12 January 2017 after they were scheduled to be picked up on 7 February 2017 due to availability and inclement weather at the destination. He also had no immediate family in the area to issue a power of attorney to have them shipped later. 12. The applicant states he altered the DA Form 31 with control number DM 17-0318 showing he signed in at Fort Drum, NY, on 13 February 2017. He changed the following: * block 9a (Accrued) – from 30 to 35 * block 9b (Requested) – from 8 to 35 * block 10a (From) – from 3 January 2017 to 10 January 2017 * block 10b (To) – from 10 January 2017 to 13 February 2017 * block 12 – was still not checked in either the approval or disapproval box 13. He was charged 33 days of leave from 11 January 2017 to 12 February 2017 (see enclosed DFAS Form 702, dated February 2017). 14. The sworn statement from CPT C____, dated 24 February 2017, states he was the applicant's previous company commander and he signed a leave form for the applicant for 8 days of PCS leave. As a company commander, he is not authorized to approve 35 days of leave and he did not sign the DA Form 31 the applicant turned in to his new unit. As the former company commander, he wholeheartedly supported the applicant's new chain of command in the pursuit of UCMJ action. 15. The DA Form 3881, dated 3 March 2017, shows the IO informed the applicant that he was being investigated for forging a government document. The DA Form 3881 was not signed by the witness or the IO. The applicant signed section C of the form but did not give up his rights and requested a lawyer. 16. His email to his new CSM, dated 3 March 2017, states he wanted to dispel anything the CSM may have heard and wanted him to know the circumstances surrounding his move. 17. On 29 March 201, he was counseled by his platoon sergeant for altering his DA Form 31. SFC S____ recommended nonjudicial punishment under the provisions of Article 15, UCMJ. 18. The DA Form 268, dated 30 March 2017, shows an adverse action flag was initiated effective date of 29 March 2016, over a year prior to the date of the actual incident. The DA Form 268 shows the commander's name, rank, title, and organization; however, it is digitally signed by SSG R____ P.M____ (rank verified in the interactive Personnel Records Management System) in the signature block. 19. His ERB, dated 30 March 2017, shows his adverse action flag with a starting date of 29 March 2017. This date is different from the date shown on the DA Form 268. 20. On 13 April 2017, the applicant's defense counsel submitted a memorandum to the 2d Brigade Combat Team Commander, subject: Request to Grant an Extension of Time to Prepare Matters in Defense, Extenuation, and Mitigation – (Applicant), wherein he requested an extension until no earlier than 24 April 2017 to prepare for the applicant's Article 15 hearing. 21. On 18 April 2017, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for being absent from his unit from 11 January 2017 until 13 February 2017 and for submitting an altered DA Form 31 with intent to deceive. His punishment included reduction to the rank/grade of SGT/E-5. 22. The receipt for his airline ticket refund from Carlson Wagonlit, dated 19 April 2017, shows he was refunded $194.70 for 10 January 2017. 23. The email from SGT O____ S____, Fort Drum Reception Activity, dated 19 April 2017, states he remembered a conversation with the applicant on or about 13 January 2017, explaining the issues with his leave form ant the winter storm. 24. The applicant's defense counsel submitted a request to the 2d Brigade Combat Team Commander, dated 28 April 2017, on the basis that the command did not exhaust all non-punitive measures in accordance with Army Regulation 27-10. 25. Samaritan Medical Center documents show the applicant was admitted to the inpatient psychiatric unit for severe depression and suicidal thoughts on 3 May 2017. He was discharged from the clinic on 11 May 2017 with follow-up mental health appointments. 26. The applicant's defense counsel submitted an appeal to the 2d Brigade Combat Team Commander, dated 16 May 2017, based on failure to consider and apply the legal standard. Counsel's appeal was denied. 27. Headquarters, MCOE, memorandum to the applicant's Congressional representative, dated 16 October 2017, states the applicant did not receive an NCOER because he did not have the minimum of 90 calendar days in the same position under the same rater during the same rating period. The applicant only had 89 days from 6 October 2016 to 2 January 2017 with his rater. The applicant had 100 days to plan for his PCS move from the day he received his PCS orders on 3 October 2016 to 3 January 2017. He was allotted from 17 December 2016 to 3 January 2017 to out-process. On 27 December 2016, the applicant's supervisor was notified by the unit that the applicant had failed to begin out-processing. The applicant was verbally counseled to perform his duties. He was allotted 4 days from 7 January 2017 to 10 January 2017 to conduct his PCS move in accordance with the Joint Travel Regulations, chapters 2 and 5. The leave document was submitted with the inquiry did not match the leave document the unit maintained. 28. On 7 November 2017, the applicant completed a Congressional privacy consent release form that states he was given 2-3 days to clear his previous installation (Fort Benning) and he did not receive an NCOER. He received his clearing papers on the first day of his PCS leave and began clearing. His DA Form 31 was not approved and was therefore invalid. This caused him to be unable to PCS in a timely manner. 29. On 13 November 2017, the applicant completed a Congressional privacy consent release form that states he was given a short amount of time to clear and did not receive an NCOER. He needed more time for transportation to pick up his HHG. The unit provided his Congressional representative with an approved DA Form 31 with a different control number from the control number on CPT C____'s DA Form 2823. He stated his former leadership went to great lengths to cover up their mistakes, but he was made the topic of discussion. 30. His DD Form 214 shows he was honorably discharged on 30 November 2017. Blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) show his rank as SGT and his pay grade as E-5. 31. Headquarters, MCOE, memorandum to the applicant's Congressional representative, dated 20 December 2017, states the applicant sent an e-mail to the Fort Benning Commanding General regarding these same accusations. The 3d Battalion, 81st Armored Regiment, Commander initiated a Commander's Inquiry. Upon receiving results from the Commander's Inquiry, the battalion commander called the applicant to discuss the accusations. Before the conversation was completed, the applicant hung up and would not answer the telephone for any subsequent calls. In both the e-mail to the Fort Benning Commanding General and this Congressional inquiry, the applicant referred to inconsistencies in statements made by CPT C____ regarding a falsified DA Form 31. The applicant is referring to the control number on the DA Form 31 which was used in the UCMJ administrative punishment at Fort Drum. The Commander's Inquiry found inconsistencies in the control number because the applicant submitted two DA Forms 31 with the same leave dates and both were logged into the 3d Battalion, 81st Armor Regiment S-1 leave form log. They were unable to ascertain why the applicant submitted two DA Forms 31 since he did not answer nor return the battalion commander's telephone calls. Therefore, the inconsistencies related to the control number on the DA Form 31 are because there were two leave forms for the same time period initiated by the applicant. Other than the control number, any unauthorized differences in the DA Form 31 stem from unauthorized changes the applicant made. 32. On 3 May 2018, the applicant completed a Congressional privacy release form to rebut the Headquarters, MCOE, response, dated 20 December 2017. The applicant states he said the commander confirmed that the original DA Form 31 contains control number DM-17-0318, which was provided in CPT C____'s sworn statement. If he had submitted two DA Forms 31, there should be no excuse as to why he received his clearing papers 36 days after doing so. The Headquarters, MCOE, response includes another statement that he was verbally counseled on 27 December 2016 to begin clearing, and he complied on 3 January 2017. There weren't any issues with planning on his behalf. The DA Form 31 with control number DM-17-0204 was created by the unit to support a response to his Congressional representative and further shows corners being cut by the unit. 33. On 4 June 2018, the applicant sent a detailed letter to his Congressional representative reiterating his circumstances in chronological order and asking numerous questions (detailed letter to his Congressional representative in packet for review). BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the circumstances surrounding the applicant’s non-judicial punishment, the DA Forms 31, the adverse action Flag, , his reduction in rank and the reason for his separation. The Board considered the statements provided, the applicant’s admission that he altered the leave form, his explanation of his delayed travel and the refund of an airplane ticket. The Board further considered the information provided within his letter to his Congressional Representative. The Board found insufficient evidence to overcome the misconduct or change the findings of the Article 15, restore his rank or reinstate him. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010858 14 1