IN THE CASE OF: BOARD DATE: 13 December 2011 DOCKET NUMBER: AR20110017917 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 he received in Korea from the restricted section of his official military personnel file (OMPF). 2. The applicant states he was scheduled to return from leave on 29 December 2009, but he was unable to return on time due to a family emergency. He called his supervisor on 29 December 2009 before his required return time to get an extension of his leave. The battalion commander approved a 5-day leave extension allowing him to return on 4 January 2009. Upon his return he was given nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to return on time. He appealed the NJP and the battalion commander reduced the punishment. He then filed an Inspector General (IG) complaint and the Article 15 was determined to be erroneous, but it is still in his OMPF. He would like the Article 15 removed from his record due to the supporting documents showing he did not violate Article 86 of the UCMJ. 3. The applicant provides: * a memorandum signed by his battalion commander at the time of the incident, dated 25 July 2011 * the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), initiated on 7 March 2009 * a DA Form 31 (Request and Authority for Leave) for the period 19 October to 29 December 2008, including a period of temporary duty from 19 October to 25 November 2008 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 4 October 2000 and he remains on active duty. He currently holds the rank/grade of sergeant first class/E-7. 2. On 5 January 2009, the applicant received event-oriented counseling for failing to repair. The officer conducting the counseling stated that the applicant was required to sign in to his unit on 29 December 2008 after being on temporary duty in conjunction with a period of authorized leave. The counseling statement shows he did not notify his chain of command that he changed his flight itinerary which resulted in his request for a 5-day leave extension. The officer indicated the applicant demonstrated a blatant disregard for duty and discipline. 3. On 7 March 2009, the applicant, then a staff sergeant/E-6, was informed that he was being considered for punishment under Article 15, UCMJ, for being absent without leave (AWOL) during the period 29-30 December 2008. He was advised of his right to demand trial by court-martial. He was also advised of his right to consult with legal counsel. 4. On 12 March 2009 after having been afforded the opportunity to consult with counsel, the applicant decided not to demand trial by court-martial and to accept the Article 15. He requested a closed hearing with no persons to speak in his behalf. He did not present any matters in defense, mitigation, or extenuation. 5. On 12 March 2009 after having considered all matters presented in defense, mitigation, and/or extenuation, the company commander imposed the punishment of a forfeiture of $688.00 pay per month for 1 month and restriction and extra duty for 14 days. The imposing commander directed filing the proceedings in the "restricted fiche of the OMPF." He was advised that he had the right to appeal the imposed punishment to the battalion commander within 5 days. 6. On 12 March 2009, the applicant indicated he would appeal the NJP and submit additional matters. 7. On 18 March 2009, a Staff Judge Advocate officer stated the appeal had been considered and it was that officer's opinion that the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offense committed. On that same date upon consideration of his appeal, the battalion commander reduced that portion of the punishment pertaining to the forfeiture of $688.00 pay per month for 1 month to $300.00 pay per month for 1 month. 8. He provides no evidence of an IG finding that the NJP was erroneous. 9. There is no evidence of record and the applicant did not provide any evidence that any action of suspension, mitigation, remission, or setting aside of his NJP was taken by an authorized authority. 10. The applicant provides a memorandum addressed to the interactive Personnel Electronic Records Management System (iPERMS), dated 25 July 2011, subject: Removal of Record of Proceedings under Article 15, UCMJ, signed by his battalion commander at the time of the incident. The former battalion commander stated the Article 15 was for the applicant's failure to return on time from leave. He stated the applicant was scheduled to return on 29 December 2008, but he was unable to return on time due to a family emergency. The applicant called his supervisor on 29 December 2008 before his required return time to request an extension. The former battalion commander stated he approved a 5-day extension allowing the applicant to return on or around 4 January 2009. Upon the applicant's return he was given a company-grade Article 15 for failing to return on time. The applicant appealed the Article 15 and he [the former battalion commander] reduced the punishment. The former battalion commander requested removal of the Article 15 from the restricted section of the applicant's OMPF. 11. In the processing of this case a member of the Board's staff telephonically contacted Lieutenant Colonel (LTC) P____, the applicant's former battalion commander, who at the time had granted a 5-day extension of the applicant's leave, in effect, after the fact. The purpose for the contact was to clarify the circumstances surrounding the issuance of NJP to the applicant in March 2009 and to clarify the substance of a memorandum submitted by LTC P____ on behalf of the applicant, dated 25 July 2011. LTC P____ stated the applicant contacted the unit after the date/time he was supposed to have returned from leave. He indicated he did grant an extension of leave for 5 days for the purpose of preventing the applicant from entering an AWOL status. LTC P____ stated he would not have imposed NJP; however, the applicant's commander decided to proceed with NJP. LTC P____ gave the impression the memorandum he signed on behalf of the applicant was prepared and presented to him by the applicant. 12. A copy of the telephone conversation record with LTC P____ was sent to the applicant to allow him an opportunity to respond to the information contained therein. The applicant states in his response that he drafted the memorandum for LTC P____ to sign, but clearly informed LTC P____ to make any changes he felt were necessary. The applicant further states his mother was admitted to the hospital on 27 December 2008 and on 28 December 2008 he decided to request an extension of his leave to stay with his mother in the hospital. He states he had no access to the Internet and had lost his personal cellular phone causing him to be unable to contact the unit until the morning of 29 December 2009 (the day he was supposed to return to his unit in Korea). About a year later he went to the IG regarding his NJP because other Soldiers in his unit returned late from leave and were not given NJP. He provides two DA Forms 31 (Request and Authority for Leave) and an extract of a leave control log as evidence to support this contention. 13. In the processing of the case a member of the Board staff conducted an Internet query for the purpose of estimating the approximate travel time from the applicant's leave location to arrival in Korea. The estimated travel time was determined to be a minimum of 30-40 hours in duration, plus travel time to and from departure and arrival airports, plus waiting time at the departure airport. 14. Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice. Chapter 3 provides that NJP is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. It is a tool available to commanders to correct, educate, and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member'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 fewer resources than trial by court-martial. It also provides that the officer imposing NJP determines whether the report of NJP (DA Form 2627) is to be filed in the individual's restricted or performance section of his/her OMPF. The regulation also states that absent compelling evidence, a properly-completed, facially-valid DA Form 2627 will not be removed from a Soldier's record. 15. Army Regulation 27-10 provides that any action of suspension, mitigation, remission, or setting aside of NJP taken by an authority will be recorded on the DA Form 2627. 16. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF. The restricted section is used for historical data that may normally be improper for viewing by selection boards or career managers. This regulation states that once placed in the OMPF, a document becomes a permanent part of that file and will not be removed or moved to another part of the fiche unless directed by certain agencies, to include this Board. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he called his supervisor on 29 December 2009 before his required return time to request an extension of his leave. However, he was scheduled to report to his unit on 29 December 2008 which would have necessitated his departure from the Dominican Republic on 27 or 28 December 2008 in order to return to his unit on time. The copies of two DA Forms 31 and leave control log subsequently provided by the applicant indicating other Soldiers in the same unit were signed in 1 day after their leave ending date does not indicate to the Board what the commander's actions were in those situations. Even if it did, the fact remains that the applicant did not return to his unit by the approved time and did not notify his chain of command beforehand that he changed his flight itinerary without prior approval. As such, had it not been for the battalion commander's after-the-fact leave extension to prevent being in an AWOL status, he would have been AWOL for 5 days. 2. The applicant received NJP under Article 15 on 12 March 2009 for being AWOL during the period 30 December 2008. The imposing commander determined it would be appropriate to file the Article 15 in the restricted section of the applicant's OMPF. 3. Army Regulation 27-10 precludes the removal of a valid DA Form 2627 from a Soldier's record without compelling evidence. 4. There is no evidence in his DA Form 2627 or elsewhere that any action of suspension, mitigation, remission, or setting aside of his NJP was taken by an authorized authority or that the Article 15 was found to be erroneous by an IG. He provided a memorandum from his battalion commander at the time of the incident addressed to iPERMS requesting removal of the DA Form 2627 from his OMPF; however, the battalion commander's statement appears to be in conflict with his action at the time. If he had extended the applicant's leave, it would be reasonable to presume he would have set aside the punishment; not reduce it. A review of the NJP proceedings found the proceedings were conducted in accordance with law and regulation and the NJP imposed was neither unjust nor disproportionate to the offense committed. 5. The Army has an obligation to maintain a complete and accurate record of an individual's service. The placement of records/documents, such as the record of NJP in the restricted section of a Soldier's OMPF, enables the Army to maintain that historical record without unduly jeopardizing the individual's career. There is no injustice in maintaining the record of NJP in the restricted section of his OMPF. Therefore, removal of the Article 15 from the applicant's OMPF is not warranted. 6. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20110017917 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110017917 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1