IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160007988 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160007988 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from the restricted folder of his Official Military Personnel File (OMPF) the DA Form 2627 dated 22 September 2010 and all allied documents. 2. To ensure this decision results in no unintended harm to the individual concerned, this Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing. The Record of Proceedings and associated documents will not be filed in the individual's OMPF or any other folder/section of his Army Military Human Resource Record. __________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: 7 June 2016 DOCKET NUMBER: AR20160007988 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 removal from the restricted folder of his Official Military Personnel File (OMPF) of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 22 September 2010, and all its allied documents. 2. The applicant states that: a. On 22 September 2010, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, while he was in Afghanistan. He successfully appealed the NJP on the basis that the charge was legally insufficient and the NJP was voided. The DA Form 2627 and the supporting documents were filed in the restricted folder of his OMPF. b. He believes that because the NJP was voided the documents should not be filed in his OMPF. c. These documents caused him to be looked at by last year's Qualitative Management Program (QMP) Board and are affecting his efforts to get promoted. d. These files have been filed in his records for 5 years. Initially, he thought it was just a paper trail of an incident that would not harm his career since his appeal was successful. Last year he found out that the file does, in fact, harm him when he was looked at by the QMP Board for something he was not convicted of. It was not until 19 April 2016 that he found out the file was not supposed to be in his records after he contacted the Interactive Personnel Electronic Records Management System (iPERMS) office and was informed he needed to submit a request to the Army Board for Correction of Military Records (ABCMR) to have the documents removed. 3. The applicant provides a copy of the NJP with allied documents and a memorandum, dated 29 May 2015, from the NJP appeal authority. CONSIDERATION OF EVIDENCE: 1. The applicant is a Regular Army (RA) staff sergeant (SSG). He holds military occupational specialty (MOS) 25L (Cable Systems Installer-Maintainer). He was promoted to SSG effective 1 May 2009. 2. On 22 September 2010, while serving as an SSG in Afghanistan, he received NJP for disobeying a lawful order by wrongfully having the door closed with a female in his room. His punishment consisted of a reduction to sergeant (SGT)/E-5, forfeiture of $1,453.00 pay per month for one month, and extra duty for 45 days. Item 5 of the DA Form 2627 concerns the filing of the NJP and it shows the imposing officer directed the NJP be filed in the restricted folder of his OMPF. 3. The applicant elected to appeal his punishment. 4. Item 8 of the DA Form 2627 shows a Judge Advocate General’s (JAG) Corps officer considered the appeal and it was her opinion that the attempt to reduce the applicant to SGT/E-5 was legally insufficient and void in accordance with Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), paragraph 5-2b and AR 27-10 (Military Justice), paragraph 3-19(5)(a) and (d). The reduction was voided. 5. Item 9 of the DA Form 2627 shows the appeal was granted. The statement "See attached memorandum dated 28 Oct 2010" is annotated on the form. The item was signed on 28 October 2010 by Colonel (COL) M____ B. B______, 160th Signal Brigade. 6. A review of the applicant's iPERMS file shows the NJP and allied documents are currently filed in the restricted folder of his OMPF. However, the 28 October 2010 memorandum issued by the appeal authority is not filed or available for review by this Board. 7. In support of his request, the applicant provide a memorandum, dated 29 May 2015, from COL M____ B. B_____, the NJP appeal authority, in which she stated: a. She granted the applicant's appeal to the NJP on 28 October 2010 because she found the basis for the punishment legally insufficient. b. She no longer has the memorandum she signed to accompany the NJP. The memorandum would have reiterated and expanded upon her decision as recorded in blocks 8 and 9 of the DA Form 2627. The memorandum would have included her reason for granting the appeal based upon subsequent interviews of key personnel which were not contained in the NJP packet in his OMPF. c. Given that she found the evidence insufficient to warrant reduction in grade, it is unlikely she only appealed the grade reduction, and not the forfeiture and extra duty. It is more likely than not than not that she granted a full appeal and vacated all punishments. REFERENCES: 1. Army Regulation 27-10 prescribes in paragraph 3-28 (Setting Aside and Restoration). This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier’s records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. 2. AR 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record (AMHRR), which includes the OMPF. The Army Board for Correction of Military Records has the authority to direct the filing or removal of records from the AMHRR. DISCUSSION: 1. The evidence of record confirms the applicant received NJP on 22 September 2010 while in Afghanistan. The punishment included reduction to SGT, forfeiture of $1,453.00 pay for one month and extra duty for 45 days. The applicant successfully appealed the NJP. 2. The appeal authority indicated that she granted the applicant's appeal of the NJP on 28 October 2010. She states it is unlikely she only appealed the grade reduction, and not the forfeiture and extra duty, and it is more likely than not than not that she granted a full appeal and vacated all the punishment. 3. The evidence indicates all findings were set aside which would warrant removal of the NJP and allied documents under the provisions of Army Regulation 27-10 from the applicant?s OMPF. If relief is granted then this Record of Proceedings could be permanently filed at the Army Board for Correction of Military Records and not in the applicant’s OMPF as it could cause him further harm. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007988 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007988 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2