BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160016064 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: 19 October 2017 DOCKET NUMBER: AR20160016064 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: 19 October 2017 DOCKET NUMBER: AR20160016064 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 the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), imposed on 24 July 2014, from the restricted folder of her Official Military Personnel File (OMPF). 2. The applicant states a. She received the Article 15 while she was deployed and assigned to the 2nd Brigade Combat Team (BCT), 101st Airborne Division. In January 2015, she was reassigned to the 716th Military Police (MP) Battalion. When she was reassigned, she had received orders stating that it was a permanent change of station (PCS) move. b. The Article 15 from 2014 is still filed in the restricted folder of her OPMF. This is in error; the Article 15 was supposed to be removed from her records. The Article 15 is hindering her military career because it is showing up in her records and it already caused her to be disqualified from recruiter duty. c. She believes this is an error due to the fact that it should have fallen off her records when she was reassigned to the 716th MP Battalion. This error is unjust and should be fixed. She believes the error occurred because it was not populated that she actually executed a PCS and that no paperwork or effort was made to have it fall off her records or have it removed. She only realized it was still in her records because she could not figure out why she had her recruiting orders deleted due to security clearance issues, when she is an MP with a secret security clearance. The Article 15 already took away two awards and because it is still in her records, her military career is at stake. 3. The applicant provides her Enlisted Record Brief (ERB), dated 19 September 2016. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 8 July 2008. Upon completion of her initial entry training, she was awarded military occupational specialty 31B (MP). 2. The applicant is currently serving on active duty in the rank of sergeant (SGT). Her ERB shows she was promoted to SGT on 1 January 2014. 3. On 24 July 2014, while serving in the rank of SGT and deployed to Afghanistan, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for wrongful appropriation, between on or about 1 April 2014 and on or about 27 June 2014, of a Roshan Mobile Wi-Fi Hotspot, of a value of less than $500.00, the property of another Soldier. 4. The imposing commander directed the filing of the DA Form 2627 in the restricted folder of the applicant's OMPF. A review of the applicant's OMPF confirms the DA Form 2627 with allied documents are filed in the restricted folder of her OMPF. 5. A memorandum, dated 5 September 2014, shows the applicant was disqualified for the Army Good Conduct Medal for the period 8 September 2011 to 8 September 2014, based on the NJP she received in 2014. 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. It provides 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 a. Paragraph 3-6 addresses the filing of an NJP and provides that a commander's decision whether to file a record of NJP in the performance folder of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance folder. b. Paragraph 3-37b(1) states that for Soldiers who are at the rank of specialist (SPC) or corporal (CPL) and below (prior to punishment) the original will be filed locally in unit NJP or unit personnel files unless the Soldier has been found guilty of a sex-related offense, in which case, the document must be filed in the performance folder in the Soldier’s OMPF. Locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another general court-martial convening authority (GCMCA), whichever occurs first. c. Paragraph 3-37b(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance folder or restricted folder of the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority. Additionally, records directed for filing in the restricted folder will be redirected to the performance folder if the Soldier has other records of NJP reflecting misconduct in the rank of SGT or higher that have not been wholly set aside and recorded in the restricted folder. d. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 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 Army Board for Correction of Military Records. It further indicates there must be evidence that demonstrates error or injustice to a degree justifying removal. 2. Army Regulation 600-37 (Unfavorable Information) prescribes the policies and procedures regarding unfavorable information considered for inclusion in official personnel files. It states 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. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. DISCUSSION: 1. The applicant requests that a DA Form 2627 be removed from her OMPF. She contends the form should have been automatically removed from her records after she was reassigned. However, the portion of the regulation that pertains to the removal of a locally-filed DA Form 2627, after 2 years from the date of imposition of punishment or the Soldier’s transfer to another GCMCA, is applicable to Soldiers in the rank of SPC/CPL or below. 2. The evidence of record confirms the applicant, while serving in the rank of SGT, accepted NJP for wrongful appropriation of another Soldier's property. The available evidence also confirms her NJP proceedings were conducted in accordance with law and regulation and the DA Form 2627 is properly filed in the restricted folder of her OMPF, as directed by the imposing commander. There is no evidence showing the DA Form 2627 was imposed in error or that it was 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) AR20160016064 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016064 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2