IN THE CASE OF: 
BOARD DATE: 11 February 2022 
DOCKET NUMBER: AR20210008457 


APPLICANT REQUESTS: 

•removal of the DA Form 2627 (Record of Proceedings under Article 15, UniformCode of Military Justice (UCMJ)), 13 October 2020, from his Army MilitaryHuman Resource Record (AMHRR)

•an investigation into the parties involved by a third party

•a personal appearance before the Board via video/telephone



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552)

•Enclosure 1 – DD Form 1610 (Request and Authorization for Temporary Travelof Department of Defense Personnel), undated, with allied documents

•Enclosure 2 – DA Form 137-1 (Unit Clearance Record), 28 February 2020

•Enclosure 3 – U.S. Army Maneuver Center of Excellence, Fort Benning, Email(Clearing Papers), 16 January 2020

•Self-Authored Statement, 31 March 2021



FACTS: 

1.The applicant states the nonjudicial punishment he received while serving atFort Benning is nothing less than a farce. He was charged with falsification of an officialdocument, a DA Form 31 (Request and Authority for Leave), while he was already in apermissive temporary duty status with orders to remain in place at his leave address.The situation was complicated by conflicting guidance during the coronavirus diseasestop-movement travel restrictions while he was in the process of a permanent change ofstation between Fort Benning and Korea.

a.For 7 months prior to the nonjudicial punishment, he was on "remain in place"orders for his home of record due to stop-movement travel restrictions. After clearing the Fort Benning installation on 28 February 2020, his leave status was terminated and his orders to Camp Humphreys, Korea, had been modified on 6 March 2020 to amend his reporting date from 10 March to 10 May 2020. On or about 8 April 2020, he was at 


his leave address in when he received orders to remain in place until further notice. During that period while he was on leave, he did not have access to the commander's stamp or ability to submit a falsified document. The only person with those types of administrative privileges after his departure would have been at the Fort Benning installation clearance office. However, the investigating officer did not interview all the key personnel, and because the investigation was conducted months later, there were pre-established biases and overt facts were overlooked and not considered. b. Approximately 2 weeks after the nonjudicial punishment was imposed, he made a permanent change of station move to Korea and has been gainfully employed since then. Based on the circumstances, removal of this document from his military records is in the interest of justice and equity. 

2.On 2 September 2020, the applicant was serving in the Regular Army in therank/grade of master sergeant/E-8.

3.The Headquarters, 3d Battalion, 81st Armored Regiment, memorandum(Appointment of Preliminary Inquiry Officer (Commander's Inquiry)), 2 September 2020,shows the applicant's battalion commander appointed a preliminary inquiry officer underthe provisions of Army Regulation 15-6 (Procedures for Investigating Officers andBoards of Officers) to determine if the applicant falsified any official documents and ifhis actions violated the Uniform Code of Military Justice (UCMJ), regulations, orpolicies.

4.The Headquarters, 3d Battalion, 81st Armored Regiment, memorandum (Findingsand Recommendations – Falsification of Official Documents), 12 September 2020,shows the investigating officer stated, in part:

a.During his investigation, he determined the applicant submitted a leave request

on 6 January 2020 for approval through his chain of command for the period 19 February through 10 March 2020. It was approved and he signed out on 19 February 2020, conducting clearing procedures through 28 February 2020. However, when his first sergeant later requested a copy of the leave request from the applicant, he received a DA Form 31 showing the period of leave from 19 February through 10 April 2020. This discrepancy of 52 days instead of 21 days prompted the chain of command to investigate to determine if the applicant falsified the documentation in order to remain on leave during the coronavirus disease lockdown. b. During the investigation, both Sergeant Major and Captain recalled signing the initial leave form and believed the second leave request was falsified. stated the initial leave form was logged into the leave control log 
and the second leave form was adjusted following its approval and returned to the applicant. 



c.The applicant stated that while the initial leave form was turned in for approval, he was provided with the second leave form by when he began his installation clearance process, which contradicts all other testimonies and evidence.d.After carefully considering the entirety of the evidence, the investigating officerfound by a preponderance of the evidence that the applicant altered his leave document, and that it is extremely unlikely that any other individual would have changed the document. In view of these findings, he recommended pursuance of disciplinary action by the applicant's chain of command for falsification of official military documents. 

5.The DA Form 2627, 13 October 2020, states the applicant is being considered fornonjudicial punishment for two violations of the UCMJ, to include signing an officialrecord with the intent to deceive and making a false statement that he was given aleave form authorizing 52 days of leave.

a.Item 3 shows the applicant was afforded the opportunity to consult with counseland, understanding his rights, he initialed the following blocks: 

•I do not demand trial by court-martial

•I request the hearing be closed

•a person to speak in my behalf is not requested

•matters in defense, extenuation, and/or mitigation are attached and will bepresented in person



b.Item 4a shows he was found guilty of all specifications.

c.Item 4b shows the convening authority directed filing the DA Form 2627 in therestricted folder of the applicant's AMHRR. 

d.Item 4c shows the applicant was advised of his right to appeal to the nextsuperior authority within 5 calendar days. 

e.Item 5 shows the applicant elected to not appeal.

f.Item 6 shows the applicant's punishment consisted of forfeiture of $2,697.00 payper month for 2 months (suspended); extra duty for 45 days (suspended); restriction to the limits of company area, dining/medical facility, and place of worship for 45 days (suspended); and an oral reprimand. 

6.There are no records indicating the applicant requested assistance from anInspector General regarding any irregularities in the Commander's Inquiry.

7.He retired on 31 October 2021 in the rank/grade of master sergeant/E-8.  HisDD Form 214 shows in:

•item 12c (Net Active Service This Period) – 20 years, 9 months, and 2 days

•item 23 (Type of Separation) – Retirement

•item 24 (Character of Service) – Honorable



BOARD DISCUSSION: 

1.The applicant's request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.

2.After reviewing the application, all supporting documents, and the evidence foundwithin the applicant's military records, the Board found that relief was not warranted.The applicant's contentions, his military records, and regulatory guidance were carefullyconsidered. The applicant is advised that the Board is not an investigative body anddoes not make recommendations to initiate investigations.

3.The applicant was given the right to trial by court-martial and was afforded theopportunity to appeal the Article 15 through the proper channels.  He waived his right totrial by court-martial and did not request an appeal.  The imposing commanderconsidered the evidence and determined the applicant committed the offense inquestion.  By law and regulation, before finding a Soldier guilty during Article 15proceedings, the commander must be convinced beyond a reasonable doubt that theSoldier committed the charged offense(s). The imposing commander's determination ofguilt will not be upset by the ABCMR unless the Board determines the commander'sdetermination was unsupported by the evidence or he or she failed to follow applicableregulations. The Board determined there is insufficient evidence that shows theimposing commander’s determination was unjust.

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. 


X
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 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the Army Board for Correction of Military Records (ABCMR). TheABCMR will decide cases on the evidence of record; it is not an investigative body. TheABCMR begins its consideration of each case with the presumption of administrativeregularity. The applicant has the burden of proving an error or injustice by apreponderance of the evidence. The ABCMR may, in its discretion, hold a hearing(sometimes referred to as an evidentiary hearing or an administrative hearing) orrequest additional evidence or opinions. Applicants do not have a right to a hearingbefore the ABCMR. The Director or the ABCMR may grant a formal hearing wheneverjustice requires.

2.Army Regulation 27-10 (Military Justice) prescribes the policies and procedurespertaining to the administration of military justice and implements the Manual for Courts-Martial. Chapter 3 implements and amplifies Article 15, UCMJ, and the Manual forCourts-Martial, chapter XXVI. Paragraph 3-4 states a commander will personallyexercise discretion in the nonjudicial process by evaluating the case to determinewhether proceedings under Article 15 should be initiated, determining whether theSoldier committed the offense(s) where Article 15 proceedings are initiated, the Soldierdoes not demand trial by court-martial, and determining the amount and nature of anypunishment, if punishment is appropriate.

3.Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers)establishes procedures for conducting preliminary inquiries, administrativeinvestigations, and boards of officers when such procedures are not established byother regulations or directives. Paragraph 5-2 states investigating officers may usewhatever method they deem most efficient and effective for acquiring information.Although witnesses may be called to present formal testimony, information may also beobtained by personal interview, correspondence, telephone inquiry, or other informalmeans.

4.Army Regulation 600-8-104 (Army Military Human Resource Records Management)prescribes policies governing the Army Military Human Resource Records ManagementProgram. The AMHRR includes, but is not limited to, the Official Military Personnel File(OMPF), finance-related documents, and non-service related documents deemednecessary to store by the Army.

a.Paragraph 3-6 provides that once a document is properly filed in the AMHRR, thedocument will not be removed from the record unless directed by the ABCMR or other authorized agency. 

b.Appendix B (Documents Required for Filing in the Army Military Human ResourceRecord and/or Interactive Personnel Electronic Records Management System) contains the list of all documents approved by the Department of the Army and required for filing in the AMHRR and/or interactive Personnel Electronic Records Management System. The original DA Form 2627 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 of 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 that an Article 15, UCMJ, report be filed in the performance folder that the imposing commander directed to be filed 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 block 8 of the DA Form 2627.
 
//NOTHING FOLLOWS//