IN THE CASE OF: BOARD DATE: 3 March 2016 DOCKET NUMBER: AR20150017518 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 a DA Form 2627 (Record of Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ) from the restricted folder of her Official Military Personnel File (OMPF). 2. The applicant states: a. The DA Form 2627 and related documents filed in the restricted folder of her OMPF needs to be removed because the documents are causing her unfair treatment. She feels she is being punished over and over for the same error. She knows double jeopardy is illegal and unfair. She was demoted and paid $1,310 for 2 consecutive months. She has paid the penalty, and learned from her mistake many times over. Due to this Article 15, she will not be given a fair look for advancement. b. In 2011, when she was a recruiter, she received nonjudicial punishment (NJP) under Article 15, of the UCMJ. She was accused of misusing a government credit card. In reality, the payments for her travel claims were just late. She had charges from hotels and restaurants from when she went over the $10 meal cap. She was advised by mature recruiters to wait until she got paid before paying her government credit card. She was guilty of listening to others and not paying her government credit card on time. c. She was advised to just accept the NJP so she would be able to transfer to a new duty station. They gave her 48 hours to seek legal help but she was not able to seek help due to mission requirements. She was young and immature and did not fight for her rights. d. Four years after the NJP imposition, she keeps paying for the same mistake over and over. She has moved on personally and completed a Bachelor of Science degree. She is currently pursuing a master’s degree to see if she can build a brighter future for her family. She has applied for different programs in the Army, but they all turned her down because of the NJP. After her service, she would like to apply for employment with the Federal Bureau of Investigation (FBI), but she believe the NJP will also hinder that option. 3. The applicant provides copies of – * 20 September 2011 DA Form 2627 * NCO (Noncommissioned Officer) Evaluation Report (NOER) from 1 August 2011 through 15 July 2012 * NCOER from 16 July 2012 through 22 January 2013 * NCOER from 23 January 2013 through 10 July 2013 * NCOER from 11 July 2013 through 10 May 2014 * NCOER from 11 May 2014 through 14 November 2014 * Enlisted Record Brief (ERB), dated 14 October 2015 * official photograph dated 29 September 2015 CONSIDERATION OF EVIDENCE: 1. The applicant, a Regular Army staff sergeant (pay grade E-6) with approximately 7 years and 8 months of active duty service, was on Army recruiting duty when she was charged with violation of a lawful general order by repeatedly misusing her government credit card. The applicant was given the opportunity to consult with counsel and elected not to demand trial by court-martial. She requested a closed hearing for the NJP. 2. On 20 September 2011 the battalion commander found her guilty and directed that the DA Form 2627 be filed in the performance section of her OMPF. He imposed punishment consisting of reduction to sergeant (pay grade E-5), and forfeiture of $1,310 pay per month for 2 months (suspended and automatically remitted if not vacated before 18 March 2012). She did not appeal. 3. The applicant’s record does not contain a reduction order. However, she was again promoted to staff sergeant with an effective date and date of rank of 1 October 2012. 4. The record also does not contain any evidence that the suspended forfeiture was vacated. Presumably, it was because the applicant contends she paid the forfeiture. 5. The restricted portion of her OMPF contains documents associated with the NJP, including a copy of the original counseling statement setting forth the requirements for using a government travel card. 6. The NCOERs that the applicant submits in support of her case show – * For the period in which she received the NJP, her rater marked her as excellent in three categories, as meeting standards in the other two and among the best overall. Her senior rater marked her in the top blocks in both overall performance and overall potential. * For the period from 16 July 2012 through 22 January 2013, she transferred to Fort Shafter, Hawaii, and her new rater marked her as excellent in two categories, as meeting standards in the other three and fully capable overall. Her senior rater marked her in the second block in both overall performance and in the top block in overall potential. * During her second rating period in Hawaii, her rater marked her as excellent in five categories. She met standards in physical fitness and was noted to be exempt from the Army Physical Fitness Test due to a physical profile * From 11 July 2013 through 10 May 2014 she was still assigned to Fort Shafter. Both her rater and senior rater marked her exclusively in the top blocks * Her most recent report (a change of rater report) shows that she was rated as excellent in three areas and successful in two and among the best overall. Her senior rater marked her in both top blocks. 7. 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. It provides that the 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: a. Paragraph 3-6 addresses the filing of an NJP and provides, in pertinent part, that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of the NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section. b. Paragraph 3-28 describes setting aside and restorations. 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. 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 un-waived 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. c. Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority. d. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF. It states that applications for removal of an Article 15 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 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. 8. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. The OMPF is an administrative record as well as the official permanent record of military Service belonging to a Soldier. Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or interactive Personnel Records Management System (iPERMS). Table B-1 provides instructions regarding the filing of documents in the OMPF. a. For all Soldiers other than E-4 and below, the original will be sent to the custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance section or the restricted section in the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by any superior authority. However, the superior authority cannot direct that an Article 15 be filed in the performance section that the imposing commander directed to be filed in the restricted section. The imposing commander’s filing decision will be indicated in item 4b of DA Form 2627. A change in the filing decision should be recorded in block 8 of DA Form 2627. b. Records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section. c. Per Army Regulation 27-10, 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 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 un-waived 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends the NJP should be removed from her record because she has been repeatedly punished by the denial of career enhancing opportunities to include advancement. 2. The evidence of record confirms the applicant accepted NJP in lieu of trial by court-martial for misusing her government credit card. 3. The NJP proceedings were conducted in accordance with law and regulation and the NJP is properly filed in the performance folder of her OMPF as directed by the imposing commander. 4. In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. There is no evidence in this case showing the NJP is untrue or unjust. Personnel management decisions are based on Soldiers records. While she believes she has received "double jeopardy" because of missed opportunities due to the NJP, part of the Army’s mission is to man the Force with the best qualified Soldiers who comply with all directives and live the Soldier Ethos. 5. Based on a lack of evidence showing the NJP is untrue or unjust, the applicant's request should be denied. 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) AR20150017518 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150017518 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1