IN THE CASE OF: BOARD DATE: 2 March 2017 DOCKET NUMBER: AR20160019794 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: 2 March 2017 DOCKET NUMBER: AR20160019794 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: 2 March 2017 DOCKET NUMBER: AR20160019794 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 the removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 26 August 2013, from the restricted folder of his official military personnel file (OMPF). 2. The applicant states that he received a company grade Article 15 about 3 years ago and it is currently filed in the restricted folder of his OMPF. However, the Article 15 should not have been placed in his restricted folder in the first place. He has documentation from his commander and first sergeant (1SG) stating the Article 15 should not have been submitted to his OMPF and it needed to stay in his local file. The top part of the DA Form 2627 shows the commander did not sign that portion or brief him of his legal rights. 3. The applicant provides DA Form 2627 and two memoranda for record (MFR). 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 Regular Army on 29 September 2004 and he holds military occupational specialty (MOS) 13B (Cannon Crewmember). On 7 November 2011, he was assigned to the Chicago Recruiting Company, Chicago, IL, in MOS 79R (Recruiter). On 1 April 2013, he was promoted to sergeant first class (SFC)/E-7. 3. On or about 23 August 2013, he was notified by his company commander, Captain (CPT) JLS, that he was considering taking action against him under the provisions of Article 15, UCMJ, for misconduct on or about 9 August 2013 for: a. Going from his appointed place of without authority. b. Being disrespectful in language toward SFC RA, a superior noncommissioned officer (NCO), by saying to him, "I'm not going to do this sh-t, this is bullsh-t" and "I will not leave your office and you better not put hands on me," or words to that effect. c. Two specifications of failing to obey lawful orders issued by SFC RA. d. Block 2 of the DA Form 2627 notified the applicant, in part, that he was not required to make statements, but if he did, they may be used against him. The commander had not yet made a decision whether or not he would be punished and he would not impose punishment unless he was convinced beyond a reasonable doubt that he committed the offenses. He was also informed of the legal rights and procedures available to him and he had the right to consult with legal counsel located at Trial Defense Service, Fort Leavenworth, KS. He had 48 hours to decide what to do. CPT JLS's signature block is listed in this block but he did not sign or date this portion of the form. 4. On 26 August 2013, the applicant indicated he had been afforded the opportunity to consult with counsel and understood his rights. He elected not to demand trial by court-martial and requested a closed hearing. He further indicated he did not want a person to speak on his behalf and he would not present matters in defense, extenuation, and mitigation. 5. On 26 August 2014, CPT JLS found him guilty of all specifications and checked block 4d of the form directing the DA Form 2627 to be filed in the restricted folder of his OMPF. The punishment imposed was forfeiture of $830.00 pay, suspended to be automatically remitted if not vacated before 25 October 2013; extra duty for 14 days, suspended to be automatically remitted if not vacated before 25 October 2013; and an oral reprimand. He elected not to appeal the Article 15. This DA Form 2627 is currently filed in the restricted folder of his OMPF. 6. The applicant provides an MFR, dated 18 December 2014, wherein CPT JLS, stated, in part: a. The MFR was to clarify a mistake associated with the filing of an Article 15 the applicant was issued on 26 August 2013. It was scanned into the restricted folder of his OMPF; however, the intent was for the Article 15 to be maintained locally. The applicant was an outstanding NCO and during his tenure as the Commander, Chicago [Recruiting] Company, he was consistently the best and most dedicated Soldier. b. The applicant was engaged in a heated debate with his center commander, SFC RA. SFC RA was concerned the debate undermined his ability to lead the center and asked that he support him and address the situation with the applicant. However, there was a miscommunication between SFC RA and himself and it was determined after reading the applicant the Article 15 that nonjudicial punishment was excessive for this situation. As a result, all parties agreed the Article 15 would be filed locally and not placed in the applicant's OMPF. c. The applicant was one of the most professional people he had encountered. He worked under the stress of family problems that he had seen destroy lesser leaders and did so without letting it impact his work performance. After the debate with SFC RA, and prior to being read the Article 15, the applicant had already rectified his mistakes and improved his relationship with his supervisor. It would be a travesty for the Army to lose the applicant because of a clerical error. 7. The applicant provides a second MFR, dated 18 December 2014, wherein 1SG SP stated, in part. a. The MFR was to explain the mistake made upon filing the Article 15 that was recommended by SFC RA and given to the applicant on 26 August 2013. It was scanned into the restricted folder of his OMPF; however, the intent was for the Article 15 to be maintained locally. The company leadership did not recommended an Article 15 be given to the applicant due to his work ethic and type of Soldier he had proven to be during his tenure in the unit. b. It was a misunderstanding between two senior NCOs. During that time, the applicant was going through a very stressful time in his life, was dealing with domestic issues, and an investigation was taking place for spousal abuse that he was a victim of. SFC RA was not aware of the issues occurring in the applicant's lift and, although the applicant had always been resilient, on that day he just could not take it anymore and expressed himself as such. c. During her time as the 1SG, the applicant always followed orders and went above and beyond the call of duty. He should not be discharged for a situation that never should have escalated due to the applicant's stress level. She recommended he be given the chance to stay in the Army. 8. On 15 January 2015, the applicant was assigned to the 2nd Battalion, 11the Field Artillery Regiment, 25th Infantry Division (ID), HI, as a platoon sergeant in MOS 13B. 9. On 13 September 2015, he was arrested by the Hawaii Armed Services Police for speeding from a shopping center parking lot, losing control of his vehicle, colliding into three shopping carts and a metal pole, and driving under the influence (DUI) of alcohol. 10. On 18 September 2015, he received a general officer memorandum of reprimand (GOMOR) from Major General (MG) CAF, Commander, Headquarters, 25th ID, HI. MG CAF stated, in part: a. He was hereby reprimanded for DUI of alcohol on 13 September 2015, in Mililani, HI. He was stopped by police for losing control of his vehicle, sliding to the left, and colliding into a grocery cart station. A subsequent breathalyzer test revealed a blood alcohol count of .159 percent, exceeding the legal limit. b. The Army and this command have consistently emphasized the consequences of operating a motor vehicle under the influence of alcohol. Clearly, his actions fell below the standards expected of an NCO in the U.S. Army. There was no excuse for his irresponsible and improper behavior. Further incidents of this nature may result in more serious action being taken against him. He trusted his future duty performance would reflect the degree of professionalism expected of every Soldier assigned to the command. c. The GOMOR was an administrative reprimand imposed under the provisions of Army Regulation (AR) 190-5 (Motor Vehicle Traffic Supervision) and not as punishment under the UCMJ. In accordance with AR 600-37 (Unfavorable Information), he was considering filing the reprimand in his OMPF; however, he would consider any matters submitted in rebuttal, extenuation, and mitigation before he made a final decision. 11. In a response, dated 5 October 2015, the applicant stated, in part: a. He made a poor judgment call on the evening he was celebrating his birthday. His best friend came into town and on the evening of 12 September 2015 they decided to go eat dinner and dance a bit. There were no plans of drinking so he did not have a backup plan. Some people heard it was his birthday and people starting buying him drinks. He did not refuse and the drinks kept coming. b. That evening he lost his military bearing and had a lapse in judgment by choosing to drive home. As a Soldier and NCO, he understood his conduct must be beyond reproach. That kind of mistake was unacceptable and he would never let it happen again. Since the mistake, he had adjusted his leadership style and it made him a stronger NCO. He would bounce back and continue to do the right thing and live the Army Values. 12. His company, battalion, and brigade commanders all subsequently recommended the GOMOR be filed in his OMPF. 13. On 28 October 2015, MG CAF stated after reviewing the applicant rebuttal and recommendations from his chain of command, he directed the GOMOR be filed in the applicant's OMPF. It is currently filed in the performance folder of his OMPF. 14. In 2016, the applicant was selected for involuntary separation by the Quality Management Program (QMP) Board. REFERENCES: 1. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It states 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. a. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. 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. b. Paragraph 3-18(1) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense. c. Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside. It states that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. Clear injustice means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. d. Paragraph 3-37b(1)(a) states the decision whether to file a record of NJP in the performance section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed. e. Paragraph 3-43 states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR. There must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR. 2. AR 600-8-104 (Army Military Human Resource Records Management) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF. It provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Table B-1 (Authorized Documents) shows the DA Form 2627 will be filed in either the performance or restricted folder of the OMPF as directed by the imposing commander. 3. Several Military Personnel (MILPER) messages provide guidance and procedures in support of the QMP. The purpose of the QMP board is to identify selected NCOs for possible involuntary separation, specifically those with a GOMOR, conviction by a court-martial or Article 15, Relief for cause NCO Evaluation Report (NCOER), a "No" in the Army Values on an NCOER, a senior rating of "4" on an NCOER, or NCO Education System failures. * Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.) * Soldiers may appeal on the basis of a material error in their records when reviewed by the board; the chain of command, all the way to a general officer, must recommend approval or disapproval * Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge; the Director of Military Personnel Management is the final authority for disposition of appeals DISCUSSION: 1. The evidence of record confirms that the commander administering the Article 15 proceedings determined the applicant committed the offenses in question during an closed Article 15 hearing after considering all the evidence submitted. By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense. 2. Although the imposing commander may not have signed the block of the DA Form 2627 stating the applicant had the right to consult with legal counsel, the applicant checked the appropriate blocks of the form to confirm he had been advised of his rights and afforded the opportunity to seek legal counsel. He waived his right to a trial by court-martial and opted for a closed Article 15 hearing. 3. The imposing commander found him guilty of all the offenses and the resultant punishment consisted of an oral reprimand. The commander also checked the block of the form directing the Article 15 be filed in the restricted folder of his OMPF. The applicant chose not to appeal his punishment. His NJP proceedings were conducted in accordance with law and regulation and the Article 15 is properly filed in the restricted folder of his OMPF. 4. It was not until almost 16 months after the Article 15 was filed in the applicant's OMPF, that the imposing commander stated the filing of the Article 15 was in error and not his intent. However, he did not state that the information recorded on the DA Form 2627 in question was untrue or unjust, and the DA Form 2627 clearly shows the commander directed filing the Article 15 in the restricted folder of the applicant's OMPF. 5. There must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record. The applicant, a senior NCO, violated the UCMJ and he was accordingly punished. His punishment included an oral reprimand. While there may be an administrative error on the Article 15, there is no evidence that shows the Article 15 is untrue, inaccurate, unjust, or in error; or that it was improperly filed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160019794 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160019794 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2