IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150019281 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: 23 June 2016 DOCKET NUMBER: AR20150019281 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: 23 June 2016 DOCKET NUMBER: AR20150019281 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, that a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 10 September 2011, be removed from her official military personnel file (OMPF). 2. She states cancelation of her plane due to inclement weather was the basis for her absent without leave (AWOL) status. She adds that she contacted her supervisor and the rest of the full time staff, but no one answered their phones. She then contacted her commander who granted her a leave extension. She states she returned by 1200 hours the following day. 3. The applicant provides: * emails * support statement * DA Form 2627 with allied documents and comments 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 U.S. Army Reserve (USAR) on 19 February 1997. On 11 July 1999, she was ordered to active duty in an Active Guard Reserve (AGR) status. 3. In an email, subject: [Applicant] Extension, dated 13 April 2011, the commander said the applicant's report date was 7 June 2011 and there would be no one available in the section. He understood that the applicant had a family situation and he did not need her to report until 28 June 2011, which would give her time to resolve her issues. 4. Email traffic, dated 15 July 2011, from American Airlines verified the cancellation of Fight 4381 on 21 June 2011 from Dayton, Ohio, to Chicago – O'Hare due to weather. 5. The applicant provides her DA Form 2627 and the following allied documents and comments: a. A memorandum, subject: Command Policy Letter [156th Combat Sustainment Support Battalion] for 304th [Sustainment Brigade (SB)] Policy Letter Number 9, dated 15 January 2009 (applicable for all Full-Time Support) states, in pertinent part, that supervisors may grant special passes for individuals who may have personal issues. Supervisors cannot grant these passes for longer than four hours during the workday. b. A memorandum, subject: Command Policy Letters, dated 2009, states all subordinate units will follow the policy letters published by their higher headquarters or by exception their command will publish additional guidance. c. A DA Form 31 (Request and Authority for Leave), dated 3 June 2011, shows the commander granted her a 4-day special pass from 17 June 2011 to 20 June 2011. Item 17 "Remarks" of this form contains the entry of "Any pass beyond 4 days will result in the entire period being charged as ordinary leave." d. A DA Form 2823 (Sworn Statement) from two noncommissioned officers (NCO) stating that they contacted the applicant and she told them she would not be in the office on 21 June 2011 due to being on a pass. She also informed one of the NCOs that she was taking her daughter to Ohio. e. A DA Form 4856 (Developmental Counseling Form), dated 22 June 2011, states the applicant was granted a 4-day pass from 17 June 2011 to 20 June 2011 for a California address. Sometime on 20 June 2011, her unit discovered that she was in Ohio. The counselor stated that the applicant was AWOL from 21 June 2011 to 22 June 2011. He further stated that she did not adhere to the proper reporting procedures as instructed on 13 February 2011 and she did not comply with the battalion's and brigade's Policy Letter Number 9. He said there was poor communication in reference to the applicant's location and her availability for duty. He added that further action would occur in regards to converting her pass into chargeable leave and for follow-up in regards to the severity of the incident. The applicant provided comments and initialed/signed the counseling form indicating that she disagreed with the counseling statement. However, her comments failed to address her special pass. f. A DA Form 4187 (Personnel Action), dated 27 June 2011, shows her duty status was changed from present for duty to AWOL, effective 0900 hours, 21 June 2011. The commander digitally signed this form. However, there is no check in the block indicating that the information "Has Been Verified." g. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 27 June 2011, shows effective 21 June 2011, a flag for adverse action was initiated on the applicant. h. A DA Form 2627, dated 10 September 2011, shows on 10 September 2011, while in the rank/grade of staff sergeant (SSG)/E-6, nonjudicial punishment (NJP) was imposed against the applicant. The Article 15 states she was absent from her unit without authority from on or about 21 June 2011 to on or about 22 June 2011. Additionally, she knew she had duties to complete from on or about 17 June 21 to about 20 June 2011 and she was derelict in the performance of those duties because she willfully failed to notify her commander of changes to her leave, as was her duty. (1) In item 3 (Having been afforded the opportunity to consult with counsel and understanding my rights listed above and on page three of this form, my decisions are as follows) the applicant indicated she did not demand trial by court-martial, she requested a person to speak on her behalf, and she would present matters in defense, extenuation, and/or mitigation. (2) In item 4a (In a closed hearing, having considered all matters presented, I hereby make the following finding), the commander initialed "Guilty of All Specifications." Her punishment consisted of a forfeiture of $400.00 pay per month for 2 months. The commander directed the filing of the DA Form 2627 in the performance section of the applicant's OMPF. The applicant initialed the block "I do not appeal." 6. On 1 May 2012, the applicant was promoted to sergeant first class (SFC)/E-7. 7. Email traffic dated 6 September 2012 from the AGR Senior Human Resources (HR) NCO indicates there were problems with the Article 15 the applicant received. She stated the: * leave was digitally signed by only one NCO * attached leave policy is contradictory * sworn statements were completed and authenticated by enlisted Soldiers and not an officer * form was not filled out correctly * delegation of flagging authority was incorrect * DA Form 31 indicates that the commander granted the applicant a 4-day extension 8. The applicant provides a supporting statement from the AGR Senior HR NCO stating that the applicant's Article 15 action was in progress prior to her assignment and she was not privy to the issue or the documents filed. Once she saw the documents, she relayed the information to the Staff Judge Advocate (SJA) and the 304th SB point of contact (POC). She stated that the information could not be filed in the applicant's records because all of the documents were wrong and the applicant had an approved leave form. 9. The Article 15 is filed in the applicant’s OMPF performance folder. REFERENCES: 1. 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). Paragraph 3-2 states 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. 2. Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files. The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual official personnel files. The regulation 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. Claims that an Article 15 is unjust will be adjudicated by the ABCMR. 3. Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies and mandated operation tasks for the leave and pass function. Paragraph 5-29 states a short, nonchargeable, authorized absence from post or place of duty may be granted using a special pass. Special passes and leave may not be combined to allow a continuous absence from the duty station, nor may special passes be combined with regular passes or with another special pass. If leave or another pass is granted, there must be at least one duty day between the special pass and the leave or other passes. DISCUSSION: 1. The applicant received an Article 15 for being AWOL from on or about 21 June 2011 to on or about 22 June 2011 and willfully failing to notify the commander of changes to her leave status. 2. She now provides an email from the AGR Senior HR NCO, written one year later, indicating that she found "administrative" errors in the processing of the Article 15 and that the commander granted the applicant a 4-day extension. There is no evidence and the applicant did not provide any showing she was granted a 4-day extension on her special pass, which the regulation prohibits. Additionally, in her supporting statement, the AGR Senior HR NCO stated that she pointed out these inconsistencies to the SJA and the 304th SB POC. However, she failed to provide any documentation from the SJA and/or the 304th SB POC substantiating her claim. 3. Nevertheless, 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 the evidence supports the commander's determination. The applicant was provided an opportunity to consult with a defense attorney, was given the right to demand a trial by court-martial, and she was afforded the opportunity to appeal the Article 15 through proper channels. The applicant initialed the document indicating that she did not wish to appeal the decision. 4. The evidence of record shows her NJP proceedings were conducted in accordance with law and regulation and her Article 15 is properly filed in the performance section of her OMPF as directed by the imposing commander. There does not appear to be any evidence of record and she has not provided any evidence to show the DA Form 2627 is untrue or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019281 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019281 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2