IN THE CASE OF: BOARD DATE: 15 December 2015 DOCKET NUMBER: AR20150017627 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 of the Uniform Code of Military Justice (UCMJ)) from his Official Military Personnel File (OMPF). 2. The applicant states he was wrongfully accused of a simple assault while forward in Afghanistan which resulted in his receipt of an Article 15. Based on the filing of the Article 15 in his OMPF, he has been identified for separation from the Army under the Qualitative Management Program (QMP). He requests removal of the Article 15 from his OMPF so he may continue his active duty service. 3. The applicant provides: * QMP notification memorandum * Statement of Options, QMP * two memoranda of support * Appeal memorandum * two Noncommissioned Officer (NCO) Evaluation Reports (NCOER) * Enlisted Record Brief (ERB) CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 18 June 2001 and has served continuously since that date in military occupational specialty (MOS) 11B (Infantryman). He was promoted to staff sergeant (SSG)/E-6 effective 1 March 2009. 2. On 10 November 2012, while serving with Company D, 2nd Battalion, 28th Infantry Regiment, in Afghanistan, the applicant accepted non-judicial punishment (NJP) in a closed hearing under the provisions of Article 15, UCMJ, for committing an assault against another NCO on 27 October 2012, by cutting him on the hand, shoulder, and arm with a dangerous weapon, means likely to produce death or grievous bodily harm, in violation of Article 128 of the UCMJ. The Article 15 was imposed by a colonel. His punishment consisted of reduction to sergeant/E-5 (suspended, to be automatically remitted if not vacated before 12 May 2013), forfeiture of $1,497.00 pay per month for 2 months, and extra duty for 45 days. 3. Item 4b of the contested DA Form 2627 shows the imposing commander directed filing of form in the restricted section of the applicant's OMPF. The applicant elected not to appeal his punishment. The contested DA Form 2627 is filed in the restricted section of his OMPF with supporting documents that include a DA Form 3975 (Military Police Report), photographs of the injured NCO's wounds, and witness statements. 4. Since this incident, the applicant has accomplished the following: * Awarded an Army Commendation Medal with 2nd Oak Leaf Cluster and North Atlantic Treaty Organization (NATO) Medal for service in support of Operation Enduring Freedom, Afghanistan during the period 23 June 2012 to 1 June 2013 * Received two NCOERs that rated him among the best and superior (number 1 block) and two NCOERs that rated him fully capable and/or superior (number 2 block) 5. On 28 September 2015, by memorandum, the U.S. Army Human Resources Command (HRC) notified the applicant that the QMP Selection Board had conducted a comprehensive review of his record for potential denial of continued service under the QMP and recommended the applicant be denied continued active service. As a result, the Director of Military Personnel Management approved the QMP board's recommendation and he was advised he will be involuntarily discharged from the Army no later than 1 April 2016. He was also advised of his rights and options. 6. On 7 October 2015, the applicant acknowledged receipt of the QMP notification memorandum and indicated he desired to submit an appeal for retention on active duty. 7. On 29 October 2015, he submitted an appeal and requested to be retained on active duty. He indicated he had initiated a request for removal of the contested DA Form 2627; highlighted his career, achievements, awards, decorations, and evaluations; and attached two letters of support from a senior officer and senior NCO supporting his retention on active duty. 8. On 20 November 2015, an ABCMR staff member contacted an HRC official to ascertain the outcome of the applicant’s appeal. The official stated that the applicant’s appeal was pending and might possibly take four to six weeks before a decision would be rendered on his request. 9. 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 a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. 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. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. b. Paragraph 3-37c(1)(a) states that for Soldiers in the ranks of sergeant 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. c. 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 sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR. 10. Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) provides policies, operating tasks, and steps governing the AMHRR, which includes the OMPF. Table B-1 is a list of all forms and documents which have been approved by Department of the Army for filing in the OMPF. Table B-1 states a DA Form 2627 will be filed in either the "Performance" or the "Restricted" folder as directed in item 4b or 5 of the form. 11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 19-11, states a Soldier denied continued service under the QMP may appeal the determination and request retention on active duty on the basis of improved performance and/or presence of material error in the Soldier’s record when reviewed by the selection board. It also states a Soldier may submit only one appeal, requests for reconsideration of denied appeals are not authorized, and the Soldier may submit relevant material in support of the appeal. Appeals are considered by QMP appeals boards normally conducted in conjunction with Headquarters, Department of the Army, centralized promotion selection boards and will consider all information considered by the QMP board and all information included in the appeal. The mere fact that a Soldier’s performance has improved or that the Soldier’s file contains material error is not necessarily sufficient to overcome the reason for QMP selection. The appeal board may determine that the reason for QMP selection still applies even in the light of the improved performance or correction of an error. Successful appeals result in removal of the denial of continued service determination. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing. 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 offenses. The evidence of record confirms the applicant did not demand trial by court-martial, opted for an Article 15 hearing, and did not appeal the outcome of that hearing. 2. The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. 3. The evidence of record also shows his Article 15 proceedings were conducted in accordance with law and regulation and the Article 15 is properly filed in the restricted section of his OMPF as directed by the imposing authority. The available evidence does not indicate that the DA Form 2627 is untrue or unjust. 4. Although it appears the applicant's performance since the incident has been excellent, as evidenced by his NCOERs, deployments, and awards, the interests of the Army are compelling when the record reflects a substantial breach of military discipline. In such cases, the record should be filed in the performance section of the OMPF. The applicant assaulted a fellow NCO, which was a substantial breach of military discipline. 5. He was considered by a QMP board that did not recommend his retention on active duty. Like a promotion selection board, a QMP board does not divulge the reason for non-selection for retention. Since the QMP board is not authorized to divulge the reasons for selection or non-selection of any Soldier, specific reasons for the board's recommendations are not known. A non-selected NCO can only conclude that a selection board determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for retention and/or promotion. 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) AR20150017627 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150017627 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1