IN THE CASE OF: BOARD DATE: 14 May 2014 DOCKET NUMBER: AR20140006443 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 DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 26 June 2003 be removed from the restricted section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File. 2. The applicant states: a. he respectfully requests the Article 15 be removed from the restricted file with the support of the imposing commander who administered the Article 15 in June 2003. b. the impact of not removing the Article 15 from his restricted file could impact his retention in the upcoming Officer Separation Board convening in April 2014. c. the imposing commander has determined that his decision on how to handle his case was the wrong choice and the punishment was unjust. His intent was to allow a young lieutenant to prove himself, show he was capable of future outstanding performance, and recover from a mistake. d. based on his record of performance, the imposing commander desires to withdraw the record of this action completely in order to be consistent with his intent of handling the case over 10 years ago and to allow the applicant to continue to advance and contribute to the missions of the Army. 3. In a memorandum, dated 10 April 2014, the applicant states: a. as a young lieutenant, on his third deployment to the Philippines as the officer-in-charge for a Subject Matter Expert Exchange, he led a live-fire demolitions range that resulted in the tragic death of a Filipino soldier when falling debris punctured his helmet, which they later discovered was a fiberglass replica and not Kevlar. The fault of this incident rests with him, as he failed to ensure all Soldiers were adhering to minimum safe distance guidelines, and a Filipino soldier whom he had come to know and trust lost his life. b. as a result, the 25th Infantry Division Commander imposed Article 15 punishment, with the caveat that if he continued his strong performance he would later pull the Article 15 from his restricted file. Unfortunately, with the upcoming Army Officer Separation Boards, this Article 15 threatens not only promotion but his ability to continue service in the profession that he loves dearly. c. this tragic accident taught him a valuable lesion early in his career on the importance of leadership, responsibility, and safety. This lesson has guided him throughout his successful career and multiple overseas deployments, and served as a harsh teaching point when stressing responsibility and safety to his subordinates. Since the incident, he has led and participated in numerous high-risk training events and conducted two combat deployments without any loss, damage, or safety incidents. He has graduated from several jumpmaster courses, he successfully led his operational detachment on two combat deployments, and he conducted two company-level deployments to train North Atlantic Treaty Organization (NATO) partners and build NATO Special Operations Forces interoperability. Following company command, he assumed the duties of 4th Battalion Executive Officer. d. it is his sincerest hope that his memorandum and the imposing commander's request for rescission show that his Article 15 both served its purpose of guiding him throughout his career and inspiring him to be the best leader he could for the betterment of the force, and is now deemed by the imposing commander to be unjust punishment. 4. The applicant provides: * Memorandum, dated 10 April 2014 * Undated letter from the imposing commander at the time in question * DA Form 2627 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a second lieutenant on 27 May 2000. He was promoted to first lieutenant on 27 November 2001. 2. A DA Form 2627, dated 26 June 2003, shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for being derelict in the performance of his duties in that he negligently failed to ensure that the Demolition Range was set up with the correct Minimum Safe Distance between the firing point and the demolitions at Dona Josefa, Philippine Islands. His punishment consisted of forfeiture of $1,000.00 pay per month for 2 months. The imposing commander directed the DA Form 2627 be filed in the restricted section of his AMHRR. He elected not to appeal the imposed punishment. 3. He was promoted to: * captain on 1 October 2003 * major on 1 November 2009 4. A review of his AMHRR on the interactive Personnel Electronic Records Management System contains a copy of the DA Form 2627 in the restricted section. 5. He provided an undated memorandum from the imposing commander who states: a. the purpose of this letter is to recommend an update to the personnel action that he signed in June 2003 regarding an incident involving the applicant (then a first lieutenant) who was a Soldier assigned to the 25th Infantry Division (Light), the unit that he was proud to command at the time. b. on that date he administered NJP to the applicant as part of a disciplinary action taken in response to an incident involving a training accident that occurred during a unit deployment of the 65th Engineer Battalion to the Philippines. At the time he reserved all disciplinary action involving officers to his level. c. after deliberation and consultation pursuant to making his decision on the disposition of the matter, the applicant's chain of command made very strong statements about his overall manner of performance and his many accomplishments. Everything considered, he made the determination to go forward with an Article 15, but directed that the action be placed in his restricted file. His intent was to take appropriate action commensurate with the serious nature of the incident, but allow a young officer an opportunity to "soldier on," prove himself, and show his potential for advancement and future contributions to the Army and the Nation. d. as we are all aware, insofar as disciplinary actions placed in an officer's restricted file, times have changed. At the time of the incident, filing a disciplinary action in an officer's restricted file was a signal from a commander that a mistake was made, but recovery was possible. It is now the case that derogatory information in an officer's restricted file threatens not only promotion potential but also that officer's ability to continue to serve in the Army, regardless of the level of experience or rank of the officer when the action was taken. e. in that light, it is now clear that his decision about how to handle the applicant's case was the wrong choice. His intent at the time was to give him some time to prove himself and his chain of command's confidence in him in order to let him show that he was capable of future outstanding performance. He has done exactly that, but his career is now in jeopardy as a result of his inability to foresee the consequences of the actions he took in 2003 in the case of a young lieutenant. f. the applicant is a highly-capable field grade officer with enormous potential for contributions going forward. The only way for the applicant to have the opportunity to fulfill that potential is to allow him to address the unintended consequences of his decision, that is, to approve his request to have the record of his Article 15 removed completely from his file. g. the applicant has compiled a superb record of performance as both a company and a field grade officer. He has reached out to the applicant's chain of command for their advice on his request to withdraw his Article 15 from his records. The words of a colonel characterize the impression that the applicant has made: "(Applicant's first name) has impressed me with his leadership, maturity, and commitment. Based on these attributes…I have requested and received approval from the United States Army Special Forces Command to retain him as one of only three SF [Special Forces] Majors authorized for a third year position within this Special Forces Group. By way of comparison, there are 32 SF Majors that I have the opportunity to select from." h. he strongly recommends that his Article 15 be expunged from the applicant's file. To do otherwise would be a grave injustice to an officer who has proven that he can overcome a mistake that occurred very early in his career and that was in no way representative of the overall manner of performance that he has proven he is capable of. The applicant has lived up to the challenge that he put to him when he directed the Article 15 be placed in his restricted file, under the mistaken impression that such a determination would allow him to prove himself and fulfill his full potential in the Army. Withdrawing the record of the action completely from his file would be completely consistent with his intent when he handled his case over 10 years ago, and will afford the Army the opportunity to benefit from the continued service of this outstanding field grade officer. 6. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to 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. 7. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM. It states, in pertinent part, that the decision whether to file a record of NJP on the performance portion of a Soldier's AMHRR rests with the imposing commander at the time punishment is imposed. 8. Paragraph 3-43 of this regulation contains guidance on the transfer or removal of records of NJP from the AMHRR. It states that applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Corrections of Military Records (ABCMR). It further indicates that 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. 9. Army Regulation 600-8-104 (AMHRR) prescribes the policies governing the AMHRR, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. The regulation states a DA Form 2627 will be filed in the performance or restricted section of the AMHRR as directed by the issuing commander (item 5 on the DA Form 2627). Allied documents accompanying the Article 15 will be filed in the restricted section. DISCUSSION AND CONCLUSIONS: 1. Evidence shows, on 26 June 2003, the applicant accepted NJP under the provisions of Article 15, UCMJ for being derelict in the performance of his duties. The imposing commander directed the DA Form 2627 be filed in the restricted section of the applicant's AMHRR. However, the imposing commander now states: a. he administered NJP to the applicant as part of a disciplinary action taken in response to an incident involving a training accident in the Philippines. His intent was to take appropriate action commensurate with the serious nature of the incident, but allow a young officer an opportunity to "soldier on," prove himself, and show his potential for advancement and future contributions to the Army and the Nation. b. insofar as disciplinary actions placed in an officer's restricted file, times have changed. At the time of the incident, filing a disciplinary action in an officer's restricted file was a signal from a commander that a mistake was made, but recovery was possible. It is now the case that derogatory information in an officer's restricted file threatens not only promotion potential, but also that officer's ability to continue to serve in the Army, regardless of the level of experience or rank of the officer when the action was taken. c. it is now clear that his decision about how to handle the applicant's case was the wrong choice. His intent at the time was to give him some time to prove himself and his chain of command's confidence in him in order to let him show that he was capable of future outstanding performance. The applicant has done exactly that, but his career is now in jeopardy as a result of his inability to foresee the consequences of the actions he took in 2003 in the case of a young lieutenant. d. the applicant is a highly capable field-grade officer with enormous potential for contributions going forward. 2. In addition, the imposing commander states: * he strongly recommends the Article 15 be expunged from the applicant's file * to do otherwise would be a grave injustice to an officer who has proven that he can overcome a mistake that occurred very early in his career and that was in no way representative of the overall manner of performance that he has proven he is capable of 3. The retrospective thinking on the part of the imposing commander was carefully considered. However, there is no evidence that the DA Form 2627 was improperly imposed. The DA Form 2627 imposed on 26 June 2003 is properly filed in the applicant's AMHRR. Therefore, 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 that 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) AR20140006443 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140006443 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1