BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20160013917 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: 20 December 2016 DOCKET NUMBER: AR20160013917 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: 20 December 2016 DOCKET NUMBER: AR20160013917 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 4 December 2015 from his Official Military Personnel File (OMPF). 2. The applicant states: a. The DA Form 2627 was directed to be placed in the performance folder of his OMPF. b. He believes the DA Form 2627 for insubordinate conduct is an act of reprisal against him for being a witness in a sexual harassment case. His supervisor, the accused, found out he had been interviewed by a Department of Defense Inspector General representative. 3. The applicant provides: * DA Form 2823 (Sworn Statement), dated 17 April 2015 * DA Form 2627, dated 4 December 2015 CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving on active duty in an Active Guard Reserve status in the Army National Guard in the rank of staff sergeant (SSG). 2. He provided a sworn statement, dated 17 April 2015, attesting: a. On 11 April 2015, he was approached by SFC M____ and asked about a rumor he had heard. SFC M____ stated some people within the company had warned him that he (the applicant) was "on the defensive" and had been building a packet against him in an attempt to get him fired. He told SFC M____ that was not true and, if anything, he was "on the defensive" against any packet that SFC M____ might be putting together in order to discharge him. SFC M____ stated that wasn't so and reminded him of what he had done to a former member of the battalion and said that if he wanted to get rid of him, he would have been gone long ago. b. SFC M____ brought up the supply sergeant (a female SSG) and stated her sexual harassment action against him was false and that they had never talked or dated. He did not reply and the conversation ended. c. On 30 April 2015, SFC M____ called him into his office and asked him why he was named as a witness to overhearing him saying something inappropriate to the supply sergeant. He asked SFC M____ if he understood that they had all read and signed a reprisal memorandum per National Guard regulation when they were interviewed by the State representative on 2 April 2015. d. He then recounted what he had said to the State representative that he heard SFC M____ say to the supply sergeant, "M____, you're not going to show me no love?" and the supply sergeant answered, "I don't know you like that." SFC M____ denied that it ever happened. He told SFC M____ that he had no reason to lie about the incident. e. SFC M____ told him that an investigation had been initiated against him based on the supply sergeant's complaint of sexual harassment, that his name was on the list of those to be questioned, and advised him to be honest. 3. The DA Form 2627, dated 4 December 2015, shows he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for using disrespectful language toward SFC M____ on 5 May 2015. He did not demand trial by court-martial. The imposing commander directed filing the DA Form 2627 in the performance folder of his OMPF. He elected not to appeal the imposed punishment. 4. His OMPF in the interactive Personnel Electronic Records Management System (iPERMS) contains a copy of the DA Form 2627 in the permanent folder. 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. The instructions state a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 of the DA Form 2627). DISCUSSION: 1. The applicant's sworn statement and his contention the DA Form 2627 is an act of reprisal against him by his supervisor for being a witness in a sexual harassment case were noted. However, he did not provide evidence to support his contention. There is no evidence showing he did not use disrespectful language toward SFC M____ on 5 May 2015. 2. The evidence shows the applicant accepted NJP under the provisions of Article 15, UCMJ, in December 2015 for using disrespectful language toward SFC M____. He did not demand trial by a court-martial and he elected not to appeal the imposed punishment. The imposing commander directed filing the DA Form 2627 in the performance folder of his OMPF. 3. There is no evidence indicating the DA Form 2627 was improperly imposed. The DA Form 2627 imposed on 4 December 2015 is properly filed in the applicant's OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013917 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013917 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2