BOARD DATE: 31 August 2017 DOCKET NUMBER: AR20170004715 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: 31 August 2017 DOCKET NUMBER: AR20170004715 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: 31 August 2017 DOCKET NUMBER: AR20170004715 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: a. the removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 30 May 2001 (hereafter referred to as the contested Article 15), from her official military personnel file (OMPF); and b. a proper categorization of the U.S. Army Human Resources Command (HRC)'s background screening decision, dated 19 October 2004. 2. The applicant states, in effect: a. The contested Article 15 was imposed for her violation of Article 91 of the UCMJ; specifically, for willfully disobeying a lawful order to only have contact with a subordinate on a professional level. b. The HRC background screening decision, dated 19 October 2004, was incorrectly categorized as Type-1 fraternization of a sexual nature. The contested Article 15 does not include [evidence that her relationship was sexual], nor does it meet the criteria [i.e. rise to the level of a Type-1 infraction] under Army Regulation 614-200 (Enlisted Assignments and Utilization Management), paragraph 8-14b (17). c. The allied documents [used to justify the contested Article 15] contain a counseling statement that is not signed by the recipient. This counseling statement directs her to have no contact with the subordinate Soldier, unless it had to do with work. d. An appeal prepared to correct this error was not accepted by HRC. She was informed of a permanent disqualification, based on exceeding the 1-year time limit for her appeal; however, that time limit does not account for her 12-month deployment. 3. The applicant provides: * DA Form 4856 (Developmental Counseling Form), dated 23 April 2001 * three DA Forms 2823 (Sworn Statement), dated 16 May 2001 * DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 17 May 2001 * DA Form 2627, dated 30 May 2001 * self-authored statement, dated 26 January 2017 * Enlisted Record Brief (ERB), dated 30 January 2017 * three letters of endorsement * 19 DA Forms 2166-8 (NCO Evaluation Report) * DA Form 2166-9-2 (NCO Evaluation Report (SSG-1SG/MSG), for the period 12 October 2015 through 1 July 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 12 August 1997. She is currently serving in the rank/grade of sergeant first class (SFC)/E-7. 2. The applicant was serving in the rank/grade of sergeant (SGT)/E-5, when her platoon sergeant (PSG) counseled her for her involvement in an alleged inappropriate relationship. A DA Form 4856, dated 23 April 2001, shows: * at approximately 2300 hours on or about 22 April 2001, the PSG heard her voice coming out of a specialist's (SPC) room * the PSG saw her emerge from the SPC's room on the morning of 23 April 2001, looking as if she just woke up * the PSG stated he heard several Soldiers in the platoon say she and the SPC spend more and more time together * the PSG stated she had been setting a poor example of a noncommissioned officer (NCO) by favoring the SPC over other Soldiers in the squad * the PSG noted she admitted to spending the night in the SPC's room * he informed her that she was only to have contact with the SPC on a professional level * the applicant agreed with the counseling 3. Two Soldiers and the PSG prepared sworn statements on 16 May 2001, in reference to the applicant being seen with the SPC at a restaurant, on or about 12 May 2001. A DA Form 3881, dated 17 May 2001, shows the PSG read the applicant her rights and he wanted to question her about violating Article 91 – disobeying an order from an NCO and violating Article 92 – disobeying an order or regulation. The applicant refused to sign the form, requested a lawyer and did not want to be questioned or say anything. 4. The contested Article 15 shows the applicant received a company-grade Article 15 for violating Article 91 of the UCMJ; specifically, for willfully disobeying a lawful order. As punishment she received forfeiture of $378.00 pay per month for one month; restriction for 14 days; and extra duty for 14 days. The commander directed the form be filed in the restricted section of her OMPF. She waived her right to trial by court-martial and did not appeal the Article 15. 5. The applicant's record is void of evidence that shows HRC made a Type-I screening categorization of her record. The applicant did not provide the Board a copy of the HRC screening, dated 19 October 2004. 6. The applicant provides: a. A self-authored statement, wherein she contends: (1) Army Regulation 600-37 (Unfavorable Information) allows such transfers [of records] when the nature of the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF, or when the Article 15 has served its intended purpose. (2) The Article 15 has met its intended purpose. It has taught her to be a better leader and has established a routine of constant self-assessments to ensure her actions are not perceived negatively. It allowed her to recognize that everyone does not have noble intentions and the necessity to never give cause for her integrity and actions to be questioned. (3) At that time, as a newly promoted SGT, she was not aware of the stigma and effect that incident would have on her record of service and since then, she has become an advocate for the continuous validation of well-rounded Soldiers and the ability to overcome adversity. She asks the Board to note the following: * she became a promotable SGT in 2002 * she was promoted to staff sergeant (SSG) in 2004 * she was inducted into the prestigious Sergeant Audie Murphy Club in 2006 * she was promoted to SFC in 2007 * she successfully held every leadership position in combat and garrison * she earned master instructor status as a small group leader/instructor-writer for the Military Police Basic Officer Leaders Course * she served as an executive committee member of the U.S. Army Pacific Commanding General's Sister in Arms Initiative * she participated in the 25th Infantry Division's Female Ranger Training Assessment Course * she received exceptional evaluations throughout her entire military career b. Letters of endorsement from two general officers and a command sergeant major; each fully support the removal of the Article 15 from her OMPF. 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. a. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment (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. b. Paragraph 3-28 describes the setting aside of punishment and restoration of any rights, privileges, or property affected by the portion of the punishment set aside are restored. (1) 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 UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all the findings in a particular case. (2) The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. (3) Clear injustice means that there exists an un-waived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of a clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. (4) 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. (5) Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 2. Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Paragraph 7-2 provides that 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. Normally, consideration of appeals is restricted to grades E6 and above, to officers, and to warrant officers. This does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders. Petition for transfer of Article 15s is Army Regulation 27-10. b. Paragraph 7-2c(1) provides this provision is limited to records of NJP imposed under the provisions of Article 15, UCMJ, and applies only to members in grades E-6 and above, officers, and warrant officers. Records of NJP may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army. The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met. Claims that an Article 15 is untrue or unjust, in whole or in part, will not be considered under this paragraph. The authority to adjudicate such claims rests with the ABCMR after the applicant has exhausted other means for administrative remedy. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program. It states that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority. 4. Army Regulation 614-200 (Enlisted Assignments and Utilization Management) paragraph 8-14 (Drill sergeant candidate prerequisites) b(17) shows Soldiers may not have Type I reports of unfavorable information disqualifiers (automatic rejection): * sexual harassment; assault characterized as moderate or severe; spouse or child abuse characterized as moderate or severe; rape or indecent acts with minors * incest, bestiality, adultery, sexual activity with subordinate Soldiers, or fraternization * conduct in violation of the Army's policy on participation in extremist organizations or activities * any court-martial conviction in the Soldier's career, provided it has not been reversed by a higher court or other appropriate authority * any repeat offenders (or combination) of Type II offenses of: driving under the influence, assault and/or spouse or child abuse characterized as mild, any drug offense, larceny and/or theft, and a traffic violation with six points or more assessed DISCUSSION: 1. The applicant requests the removal of the contested Article 15 from her OMPF and a correction to HRC's 19 October 2004 screening decision. She contends she has learned from the incident and the contested Article 15 has served its purpose. 2. The applicant did not provide information related to the aforementioned HRC screening decision, and her record is void of such a decision. Therefore, it appears the Board is unable to make a determination on the merit of that portion of her request. 3. The imposing commander's function, with respect to the contested Article 15, is to make a decision as to whether or not a Soldier committed the offense in question. These decisions will not be upset by the ABCMR unless the Board determines the commander'[s determination was unsupported by the evidence or he or she failed to follow applicable regulations. 4. The evidence of record confirms the contested Article 15's imposing commander considered the evidence and determined the applicant committed the offense in question. 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 charged offense(s). 5. The evidence of record confirms the applicant was given the right to trial by court-martial, and she was afforded the opportunity to appeal the Article 15 through the proper channels. She waived her right to trial by court-martial and did not request an appeal. 6. The applicant did not provide evidence that clearly exonerates her or shows that there was a clear injustice. In fact, she admitted to the offense. However, she contends the contested Article 15 has served its purpose and should now be removed from her OMPF. The governing regulation allows for the transfer of Article 15s within the OMPF when they have served their purpose; however, not their removal from the OMPF. For example, transferring an Article 15 from the performance section (most visible) to the restricted section (least visible) of the OMPF. In the case, the contested Article 15 was filed in the restricted section or least visible section of her OMPF. 7. The applicant provides evidence and a self-authored statement, which shows she has performed exceptionally well in her duties as an NCO since the imposition of the contested Article 15. Regulatory guidance prescribes that a Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment, and a 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. 8. Regulatory guidance states that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority, such as this Board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170004715 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2