IN THE CASE OF: BOARD DATE: 24 February 2023 DOCKET NUMBER: AR20220005005 APPLICANT REQUESTS: in effect: a. removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 13 September 2006, from the restricted folder of his Army Military Human Resource Record (AMHRR); b. removal of the general officer memorandum of reprimand (GOMOR), 13 September 2006, from the restricted folder of his AMHRR; and c. reconsideration for promotion to colonel (COL)/O-6 by a special selection board (SSB). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * three Memoranda of Endorsement, 29 July 2015, 23 March 2016, and 12 May 2016 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was arrested in a foreign country (Italy) 17 years ago and that information was the cause for being non-selected for promotion to the rank of COL/O-6 in 2022. He was also initially passed over for promotion to lieutenant colonel (LTC)/O-5 in 2015 for the same reason. Therefore, he requests removal of all derogatory information from his records. b. He believes this information is unjust to his career because the Army has entrusted him to be the U.S. Army Dental Health Activity (DENTAC) Commander of the most prestigious post in the U.S. Army (U.S. Military Academy, West Point), but the Army did not promote him to COL/O-6 because of something he did 17 years ago. In those same 17 years, he has volunteered for and deployed to Iraq, voluntarily coached over 1,000 hours of Child and Youth Services sports, is a 2-time commander, was a 4-time officer in charge, is a board-certified endodontist, completed the Intermediate Level Education, is a 10-year Army Fitness Badge holder, and has had an impeccable record for the last 16 years. He would like this derogatory information removed from his AMHRR and then considered for promotion to COL/O-6 by an SSB based on removal of the derogatory information. 3. He was appointed as a Reserve commissioned officer in the Dental Corps in the rank/grade of second lieutenant/O-1 and executed the oath of office on 17 March 1999. 4. U.S. Army Human Resources Command Orders A-01-490028, 14 January 2004. ordered him to active duty for a period of 4 years to fulfill his Active Army obligation at the U.S. Army DENTAC, Fort Bragg, NC, effective 2 February 2004. 5. He was promoted to the rank/grade of captain/O-3 effective 30 January 2004. 6. Headquarters, XVIII Airborne Corps and Fort Bragg, Orders 222-16, 10 August 2005, assigned him to the U.S. Army Dental Clinic-Vicenza, Vicenza, Italy, with a reporting date no later than 1 February 2006. 7. The DA Form 2627, 13 September 2006, shows: a. He was considered for imposition of nonjudicial punishment (NJP) under Article 15, UCMJ, on 13 September 2006 while serving in the rank/grade of captain/O-3 for the following misconduct: (1) recklessly damaging a privately owned apartment building of a value of over $500 by driving his vehicle into it at or near Vicenza, Italy, on or about 1 September 2006, in violation of Article 109, UCMJ; and (2) physically controlling a vehicle, to wit: a passenger car, while drunk at or near Vicenza, Italy, on or about 1 September 2006 and thereby causing said vehicle to strike and damage an apartment building in violation of Article 111, UCMJ. b. He was afforded the right to consult with counsel. In a closed hearing and having considered all matters presented, the imposing commander found the applicant guilty of the specifications. c. His punishment consisted of forfeiture of $1,825 pay per month for 2 months and a written reprimand. d. He elected not to appeal. e. The imposing commander directed filing the DA Form 2627 in the restricted folder of his Official Military Personnel File (OMPF) on 13 September 2006. 8. He was reprimanded in writing by the Commander, U.S. Army Southern European Task Force (Airborne), Italy, on 13 September 2006, who stated: I hereby reprimand you for your conduct on 1 September 2006 when you failed to maintain control of your vehicle, left the roadway, and crashed into an apartment building. Your vehicle was completely destroyed, the apartment building incurred massive structural damage, and you sustained injuries to your left arm and shoulder which necessitated emergency surgery. You were then taken to Hospital where a test of your blood was administered which resulted in a .253% BAC [blood alcohol content]. Driving a vehicle while impaired is inexcusable and incompatible with the maintenance of high standards of performance, military discipline and readiness. Such irresponsible behavior constitutes a serious threat to the health and welfare of both the military and civilian communities. Your misconduct is a discredit to you, your fellow soldiers, and the United States Army. I am imposing this reprimand as punishment under the UCMJ, Article 15. This reprimand will be filed as an allied document of the DA Form 2627, 13 September 2006. 9. In an undated document, the imposing authority directed filing the subject DA Form 2627 and GOMOR in the restricted folder of his OMPF. This document was not signed or initialed by the applicant. 10. A review of his AMHRR shows the subject DA Form 2627 and GOMOR with allied documents are filed in the restricted folder. 11. He was promoted to the rank/grade of major/O-4 effective 30 January 2010. 12. The Secretary of the Army memorandum (Promotion Review Board AP1509-05, Fiscal Year 2015 LTC, Dental Corps, Promotion Selection Board), 19 November 2015, shows the Acting Secretary of the Army directed his removal from the Promotion Selection List under statutory and regulatory policies. 13. He provided three memoranda of endorsement, 29 July 2015, 23 March 2016, and 12 May 2016, addressing his Promotion Review Board notification and subsequent removal from the LTC Promotion Selection List. All three letters attest to his responsibilities as a dental officer and commander, ability, and professionalism. The authors understand the severity of his lapse in judgment in Italy but feel he is an asset to the Army. 14. U.S. Army Human Resources Command, Fort Knox, KY, Order Number 264-023, promoted him to the rank/grade of LTC/O-5 effective 1 October 2016. 15. He is currently serving as the DENTAC Commander of the U.S. Military Academy, West Point, NY. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. 1. With respect to the removal of the contested Article 15: a. The evidence shows the imposing commander informed the applicant of his intent to punish him under Article 15 for recklessly damaging a privately owned apartment building by driving his vehicle into it, and physically controlling a vehicle, passenger car, while drunk, and thereby causing said vehicle to strike and damage an apartment building. He declined trial by court-martial and opted for a closed hearing. The imposing commander found him guilty and directed filing the Article 15 in the restricted folder of his Official Military Personnel File (OMPF). The applicant elected not to appeal. b. The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander’s function, and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through proper channels. He elected not to appeal. c. His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in his OMPF as directed by the imposing commander. There is no evidence of record, and he provides no evidence to show the DA Form 2627 is untrue or unjust. In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. d. The applicant's continued service to our nation, his awards and decorations, and his combat tours are noted. However, the fact remains that he violated the UCMJ, and he was punished for it. Any impact on his career is a natural consequence of his own actions. In the absence of an error or an injustice, there is no reason to remove the Article 15 from his records. 2. With respect to the removal of the contested GOMOR: a. The evidence shows the applicant was reprimanded for his conduct when he failed to maintain control of his vehicle, left the roadway, and crashed into an apartment building. His vehicle was completely destroyed, the apartment building incurred massive structural damage, and he sustained injuries to left arm and shoulder which necessitated emergency surgery. He was taken to a hospital and where a test of his blood was administered which resulted in a .253% BAC [blood alcohol content]. His misconduct was described as a discredit to him, fellow soldiers, and the Army. b. Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well. There is a reluctance to remove or transfer adverse information when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions. Here, the GOMOR is properly filed, and the applicant has not proven this GOMOR to be either untrue or unjust. 3. With respect to the SSB, by law and regulation, an SSB is appropriate if an officer was not considered in or above the promotion zone by a regularly scheduled board because of administrative error, or the promotion board that considered the officer in or above the promotion zone acted contrary to law or made a material error; or if the promotion board that considered the officer in or above the promotion zone did not have before it some material information. The Board determined since there is no material error in his record, an SSB is 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. ? REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 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. It provides that a commander should use non-punitive 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 non-punitive 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 3-6a addresses the filing of 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 imposition of the NJP itself. In making a filing determination, the imposing commander must carefully weigh 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. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance folder. b. Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OPMF. The decision to file the original DA Form 2627 in the performance folder or 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 superior authority. However, the superior authority cannot direct filing a DA Form 2627 in the performance folder that the imposing commander directed to be filed in the restricted folder. c. Paragraph 3-43 contains guidance for the transfer or removal of DA Forms 2627 from the OMPF. It states that applications for removal of an NJP from the OMPF based on an error or injustice will be made to the ABCMR. It further states there must be clear and compelling evidence to support removal of a properly completed, facially valid DA Form 2627 from a Soldier's record by the ABCMR. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. An administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. b. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). c. Paragraph 7-2 states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agencies. b. Appendix B (Documents Required for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) states: (1) DA Forms 2627: 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 of the OMPF will be made by the imposing commander; and (2) memorandums of reprimand, censure, and admonition are filed in accordance with Army Regulation 600-37. 5. Title 10, U.S. Code, section 628 (Special Selection Boards), paragraph (b)(1), states if the Secretary of the Military Department concerned determines, in the case of a person who was considered for selection for promotion by a promotion board but was not selected, that there was material unfairness with respect to that person, the Secretary may convene an SSB under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion. In order to determine that there was material unfairness, the Secretary must determine: a. the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involved material error of fact or material administrative error; or b. the board did not have before it material information for its consideration. 6. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. Paragraph 7-2 states an SSB may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers one or more of the following: * an officer was not considered in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required) * the board that considered the officer in or above the promotion zone acted contrary to law or made a material error (SSB discretionary) * the board that considered the officer in or above the promotion zone did not have before it some material information (SSB discretionary) //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005005 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1