BOARD DATE: 3 March 2016 DOCKET NUMBER: AR20150007765 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, in effect, removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from his Official Military Personnel File (OMPF). 2. The applicant states that it was not right to give him an Article 15 (also known as non-judicial punishment (NJP)) after his court-martial was dismissed. 3. The applicant provides no evidence. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 17 July 1984. 3. His OMPF contains a DA Form 2627 showing: a. He accepted NJP on 13 June 1988, while serving in the rank of specialist four/E-4, for – * wrongfully accepting a stereo, an equalizer, and two speakers valued at about $675.00 on 16 September 1987, and known by him to be stolen property * wrongfully receiving a radar detector valued at about $99.00 on 12 November 1987 and known by him to be stolen property b. He elected not to demand a trial by court-martial, and instead he chose for the matter to be handled by his battalion commander in a closed hearing. c. Subsequent to the hearing, the punishment imposed consisted of a reduction to private/E-1, forfeiture of $200.00 pay for 2 months, and 45 days of extra duty and restriction. d. The battalion commander directed the DA Form 2627 be filed in the performance section of the applicant's OMPF. e. The applicant did not appeal the punishment. 3. On 16 July 1988 the applicant was honorably discharged from active duty by reason of expiration term of service. 4. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. Paragraph 3-43 of the military justice regulation contains guidance on the transfer or removal of records of non-judicial punishment (DA Form 2627) from the OMPF. It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR. It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR. 5. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 contains guidance on appeals and petitions for removal of unfavorable information from the OMPF. It 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, DISCUSSION AND CONCLUSIONS: 1. The applicant contends the DA Form 2627 in question should be removed from his OMPF because it was administered after his dismissal from a court-martial. There is insufficient evidence to support this claim. 2. The evidence of record confirms that after being properly notified that his battalion commander was considering whether he should receive the NJP, the applicant elected not to demand a trial by court-martial and to submit matters in his defense, mitigation, and/or extenuation. The applicant also elected not to appeal the punishment and confirmed his decision on 15 June 1988. 3. By regulation, the basis for any set aside action must show "clear injustice" which means 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. 4. The evidence of record does not show there was a legal or factual error made in the NJP process that would support setting it aside. Therefore, the “clear injustice” regulatory standard necessary to set-aside an NJP has not been satisfied making it inappropriate to remove the DA Form 2627 from his record. BOARD VOTE: ________ ________ ________ 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 that 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. ABCMR Record of Proceedings (cont) AR20150007765 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007765 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1