BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20160008423 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 BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20160008423 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. BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20160008423 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 of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 1 December 2014 and a general officer memorandum of reprimand (GOMOR), dated 12 January 2015, from his Official Military Personnel File (OMPF). 2. The applicant states: * he was not arrested for or charged with driving under the influence of alcohol * he served his punishment and was demoted * after he completed the 45 days of extra duty and restriction, the imposing commander set aside the punishment, citing a clear injustice 3. The applicant provides: * DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ) * memorandum for record, dated 28 May 2015 * request for removal of record of proceedings under Article 15 and GOMOR * response to Qualitative Management Program notice * DA Form 2166-8 (Noncommissioned Officer Evaluation Report) * character-reference statements CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 27 July 2006. He was promoted to staff sergeant effective 1 May 2013. 2. The DA Form 2627, dated 1 December 2014, shows he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for physically controlling a vehicle while drunk. His punishment included reduction to E-5, extra duty for 45 days, and restriction for 45 days. The imposing commander directed filing the DA Form 2627 in the restricted folder of his OMPF. He elected not to appeal the imposed punishment. 3. On 12 January 2015, he received a GOMOR for unlawfully driving a motor vehicle while under the influence of alcohol. The commanding general stated the Provost Marshall's Office was notified of a possible medical emergency at a gas station off post on 26 October 2014. Further investigation revealed that the applicant was unresponsive behind the wheel of his privately owned vehicle with the vehicle turned off and still in drive. When military police responded to the scene they detected a strong odor of alcohol emitting from his person. A series of standardized field sobriety tests were administered showing multiple signs of impairment. He was apprehended and transported to the military police station where he rendered a breath sample with a result of .118% blood alcohol content. On 11 March 2015, the commanding general directed permanently filing the GOMOR in the applicant's OMPF. 4. He provided a DA Form 2166-8 covering the period 14 March 2014 through 13 March 2015 showing: a. He was rated "Fully Capable" by his rater for overall potential for promotion and/or service in positions of greater responsibility. b. He was rated "Successful-2" by his senior rater for overall performance. c. He was rated "Superior-2" by his senior rater for overall potential for promotion and/or service in positions of greater responsibility. 5. He provided a memorandum for record from the NJP imposing commander, dated 28 May 2015, which states setting aside the rank reduction is appropriate for the following reasons: a. Since the incident in October 2014, the applicant has continued to perform exceptionally at the level of a staff sergeant. He completed his punishment from the Article 15 without complaint and without letting it diminish his motivation or work ethic. He also received a GOMOR, which was ultimately filed in his OMPF, and he still continued to outperform many of his peers. His commitment to the organization and the Army at large is apparent. b. He successfully completed the Army Substance Abuse Program, is actively participating in Alcoholics Anonymous, and has been sober since October 2014. Given his performance since the incident, dedication to indefinite sobriety, and the unique circumstances of the incident itself, he has no doubt this incident was isolated and will not be repeated in his career. c. It is in the best interest of the Army for the applicant to be a staff sergeant. He has set himself apart by becoming the only Soldier in his military occupational specialty, electronic warfare specialist, to be both Ranger and Battle Staff qualified. As a sergeant, his ability to work in positions where his skill set would be extremely useful would be severely hindered. d. Considering all of the above mentioned matters, setting aside of the applicant's rank reduction is justified. 6. He provided a DA Form 2627-2, dated 3 June 2015, showing the imposed reduction in rank punishment was set aside on the basis of a clear injustice. 7. A review of the performance folder in his OMPF in the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the GOMOR in question and the restricted folder revealed a copy of the DA Form 2627. 8. He also provided numerous character-reference statements from his superiors recommending his retention on active duty. They attest: * he is a resilient, dedicated leader who continues to demonstrate great potential and excellence * he consistently operates at the highest standards * he demonstrates strong leadership and great potential for continued service * he is mature and extremely competent * his personal and professional conduct within the Battalion Support Company has earned him the respect of subordinates, peers, and superiors * his talents, abilities, and experiences will undoubtedly make him an outstanding senior leader in the future * he remains one of the most capable, hardest working, and highest performing noncommissioned officers the battalion engineer has observed * he maintains a constant train-as-you-fight attitude * he has constantly sought opportunities to advance his technical and tactical competencies and has consistently shared these experiences for the better of his U.S. Army * he is a confident Soldier, always troubleshooting a situation and using resources * he is resilient, mature, and competent * he lives the Army Values and will always make himself available to help any Soldier in need * he has learned his lesson from the incident that resulted in the GOMOR * he is a Ranger, Jumpmaster, and graduate of the Army Battle Staff Noncommissioned Officer Course * he has a high level of competence and professionalism * he is a professional and a trustworthy individual * he is a person of moral fortitude and has an intense desire to serve his country with honor and distinction REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. a. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. It states the decision whether to file a record of NJP in the performance folder of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed. b. Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. It states applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records. It further indicates 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 Army Board for Correction of Military Records. 2. Army Regulation 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. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 3. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of Army Regulation 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. a. The instructions state to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the Department of the Army Suitability Evaluation Board. b. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 on the DA Form 2627). Allied documents accompanying the DA Form 2627will be filed in the restricted folder. DISCUSSION: 1. The evidence shows the applicant accepted NJP under the provisions of Article 15, UCMJ, in December 2014, for physically controlling a car while drunk. The imposing commander directed filing the DA Form 2627 in the restricted folder of the applicant's OMPF. 2. There is no evidence that the DA Form 2627 was improperly imposed. The DA Form 2627 imposed on 1 December 2014 is properly filed in the applicant's OMPF. 3. Although he contends he was not arrested for or charged with driving under the influence, the GOMOR states he: * was apprehended by military police * rendered a breath sample with a result of .118% blood alcohol content * unlawfully drove a motor vehicle while under the influence of alcohol 4. The evidence shows the applicant, serving in the rank of staff sergeant, received a GOMOR in 2015 for driving a motor vehicle while under the influence of alcohol. 5. The DA Form 2627-2 showing the applicant's reduction in rank to sergeant was set aside and the memorandum for record from the NJP imposing commander were noted. However, DA Form 2627-2 set aside only the portion of the nonjudicial punishment relating to reduction in rank. 6. The character-reference letters were carefully considered. However, the governing regulation states administrative letters of reprimand will be filed in the OMPF as directed by the issuing commander. The GOMOR is properly filed in the applicant's military records in accordance with the governing regulation. There is no evidence the GOMOR was improperly imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008423 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008423 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2