BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20170001842 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20170001842 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the letter of reprimand, dated 1 July 2015, from the restricted portion of her official military personnel file. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing a record of punishment under Article 15, Uniform Code of Military Justice, from her 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. BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20170001842 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 an Article 15 from her official military personnel file (OMPF). 2. The applicant states the Article 15 is filed in the restricted section of her OMPF. In June of 2015, she was given a letter of reprimand (LOR) and told by the imposing authority that it would be filed locally and removed when she left the unit or within 2 years, whichever came first. She has been gone from that unit and this error is still on her record causing a setback in her career. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Having had prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 7 January 2009. She holds military occupational specialty 92A (Automated Logistical Specialist). 2. She was advanced to sergeant/E-5 in May 2012. She was assigned to A Company, 501st Brigade Support Battalion, 1st Armored Division, Fort Bliss, TX. 3. On 23 June 2015, the applicant’s battalion commander notified the applicant that he was considering whether she should be punished under Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful in language toward a warrant officer. 4. Having been afforded the opportunity to consult with counsel and understanding her rights, the applicant decided to decline trial by a court-martial and opted for a closed hearing. She further requested a person to speak on her behalf and elected to present matters in her own defense in person. 5. On 30 June 2015, the imposing officer found her guilty of violating Article 91, UCMJ. The applicant received nonjudicial punishment (NJP) under Article 15 of the UCMJ for being disrespectful in language. Her punishment consisted of a written reprimand. The imposing commander directed filing the DA Form 2627 in the restricted folder of her OMPF. 6. The applicant was advised of her right to appeal to the next higher authority; however, the applicant indicated she did not want to appeal. 7. Her official records contain an LOR, dated 1 July 2015. She was reprimanded by the battalion commander for her disrespect toward a warrant officer on 21 May 2015. She was reminded that as a Soldier she was expected to maintain military bearing at all times. * The reprimand was imposed as punishment under Article 15 of the UCMJ and was to be locally filed. * It was to be removed upon the applicant leaving the unit or after 2 years, whichever came first 8. The Article 15 together with its allied documents - counseling statement(s), written reprimand, flag, Enlisted Record Brief, and statement, are filed in the restricted folder of the applicant’s OMPF. 9. On 10 August 2015, she was assigned to A Company, 123rd Brigade Support Battalion, 3rd Brigade Armored Combat Team, Fort Bliss, TX. 10. On 4 April 2016, the U.S. Army Installation Management Command, Fort Bliss, TX, issued her temporary change of station orders to deploy to Camp Buerhing, Kuwait, on or about 1 June 2016, not to exceed 290 days, and return to her permanent station upon completion of her tour. 11. Her NCO Evaluation Report for the rating period 10 August 2015 through 8 August 2016 shows she remained assigned to A Company, 123rd Brigade Support Battalion, Fort Bliss. REFERENCES: 1. AR 27-10 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 3-28, 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 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 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 Article 15 or 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. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. c. 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 (ABCMR). 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 ABCMR. 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. 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. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of AR 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 is 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 2627 are filed in the restricted folder. DISCUSSION: 1. The evidence of record confirms the applicant waived her right to a trial by court-martial and opted for an Article 15 hearing. She accepted NJP and her punishment consisted of written reprimand. The imposing officer directed this Article 15 be filed in the restricted section of her OMPF and this is where the Article 15 is currently filed. The applicant was advised of her rights and she was advised of her right to appeal. She elected not to appeal. 2. The Article 15 she received is properly filed in the restricted folder of her OMPF because that is where the imposing officer ordered it to be filed. Additionally, allied documents, including the written reprimand, are also filed in the restricted folder of the OMPF. 3. Although the imposing commander stated this reprimand would be removed upon the applicant leaving from the unit or after 2 years, this had no bearing on the filing of the Article 15 and did not change the finding of guilty and/or the filing decision directed by the imposing officer. 4. The imposing commander did promise her that the LOR would be removed upon leaving the unit or after 2 years, whichever comes first. The Article 15 was imposed on 30 June 2015 while she was assigned to A Company, 501st Brigade Support Battalion. She left this unit on 10 August 2015. 5. Her NJP proceedings were conducted in accordance with law and regulation and her Article 15, together with the allied documents, is properly filed in the restricted section of her OMPF as directed by the imposing commander. The conditions under which the imposing commander stated the LOR would be removed from her record have been met. The LOR may be removed; however, absent a reason for setting aside her punishment entirely, there is no basis for removing the record of NJP. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170001842 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170001842 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2