IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20160003487 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 IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20160003487 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 to warrant amendment of the ABCMR's decision in Docket Number AR20150017627, dated 15 December 2015, 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. IN THE CASE OF: BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20160003487 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 reconsideration of his earlier request to remove a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from the restricted folder of his official military personnel file (OMPF). 2. The applicant states, in effect: * the DA Form 2627 (also referred to as nonjudicial punishment (NJP) or Article 15) was being considered by the Qualitative Management Program (QMP) board; if it was removed he could be retained and continue his active duty service * what occurred does not directly reflect the quality of his service and, on that basis, he contends its continued presence in his OMPF is unjust and in error; also, his commanding officer told him when it was administered that it could be removed * he asserts it would be in the interest of justice to favorably consider his request; the Noncommissioned Officer Evaluation Report (NCOER) covering the rating period of 31 May 2012 through 30 May 2013 more accurately describes his professionalism at the time he received the NJP * the NCOER shows a rating of "2" for performance and "1" for potential; these rating indicate the type of leadership he was exhibiting 3. The applicant provides: * two letters of support * DA Form 2166-8 (NCOER)) for the rating period 31 May 2012 through 30 May 2013 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150017627 on 15 December 2015. 2. The applicant provides two letters of support. This new evidence was received within one year of the Board’s decision and was not previously considered by the Board. 3. The applicant enlisted in the Regular Army on 18 June 2001, and served continuously from that date in military occupational specialty (MOS) 11B (Infantryman). He was promoted to staff sergeant (SSG)/E-6 on 1 March 2009. 4. On 10 November 2012, while serving in Afghanistan, his commander, Colonel (COL) JED, offered him NJP. He was permitted 48 hours to consult with counsel. a. He was charged with committing an assault against another NCO on 27 October 2012, by cutting him on the hand, shoulder, and arm with a dangerous weapon (a knife), means likely to produce death or grievous bodily harm, in violation of Article 128 of the UCMJ. b. On 10 November 2012, after having been afforded the opportunity to consult with counsel, the applicant indicated he did not demand trial by court-martial, and elected a closed Article 15 hearing. He further indicated that he would have someone speaking in his behalf (that person is not named in the record). He also affirmed he would be presenting matters in defense, mitigation, and/or extenuation. The applicant's commander found him guilty of the charge. c. His punishment consisted of a suspended reduction in rank to sergeant/ E-5, which was to be automatically remitted, if not vacated before, on or about 12 May 2013 (his OMPF is void of any indication this suspension was ever vacated), forfeiture of $1,497 per month for 2 months, and extra duty for 45 days. d. He elected not to appeal the Article 15 punishment, and the imposing authority directed the Article 15 be filed in the restricted portion of his OMPF. 5. On 28 September 2015, the U.S. Army Human Resources Command (HRC) notified him that the QMP board had conducted a comprehensive review of his record for potential denial of continued service under the QMP and recommended denying his continued active service. As a result, the Director of Military Personnel Management approved the QMP board's recommendation, and notified the applicant the applicant he would 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, he acknowledged receipt of the QMP notification memorandum and 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. 7. On 3 November 2015, he applied to the Board to remove the NJP. At the time, the QMP board had not yet acted upon his appeal. The Board denied his application on 15 December 2015. 8. He was honorably discharged on 1 April 2016 by reason of non-retention on active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 14 years, 9 months, and 14 days of net active creditable service. He had deployed once to Kosovo, and twice to both Iraq and Afghanistan. He was awarded or authorized: * Army Commendation Medal (4th Award) * Army Achievement Medal * Army Good Conduct Medal (4th Award) * National Defense Service Medal * Kosovo Campaign Medal with one bronze service star * Afghanistan Campaign Medal with two bronze service star * Iraq Campaign Medal with two bronze service stars * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * NCO Professional Development Ribbon (2nd Award) * Army Service Ribbon * Overseas Service Ribbon (4th Award) * North Atlantic Treaty Organization Medal (2nd Award) * Valorous Unit Award * Meritorious Unit Commendation (Army) (2nd Award) * Combat Infantryman Badge * Expert Infantryman Badge * Driver and Mechanic Badge with Wheeled Vehicle Clasp 9. The applicant provides: a. Letter of support, dated 5 November 2015, addressed to the QMP board, and signed by COL MWM, a commander of a brigade combat team within an Infantry Division. It essentially states: * he recommends approval of the applicant's appeal of the QMP board's decision; the applicant was, at that time, in the process of requesting removal of the DA Form 2627 from his OMPF * the NCOER for the rating period 31 May 2012 through 30 May 2013 directly reflects his professionalism during the time of the NJP; he received a "2" for performance, and a "1" for potential * these high ratings are a direct indication of the type of leadership he exhibited b. Letter of support, dated 21 October 2015, addressed to the Deputy Commander, Forces Command, and signed by Sergeant Major JML, an operations sergeant major for a brigade combat team. He writes, in summary: * he met the applicant when he (the applicant) was being interviewed for a position of NCO-in-charge (NCOIC) of the battalion's school; he was accepted for this position and has performed exceptionally well * he displays work ethic, professionalism, and values which stand above all those within his section; within a short time he became a valued member of the team and made significant contributions * when he/his unit received word he was being considered by the QMP board, the writer immediately provided guidance, support, and direction * he does not want to see the applicant separated from the service; the applicant has demonstrated beyond measure his value and importance to his organization; his level of performance has been consistent with that typically seen from more experienced NCOs * it would be a mistake to lose this valuable leader, and the writer asked the QMP board to pay more attention to the leader he has become, rather than focus on past evaluations, which, he believes, were given under a toxic leadership style, and did not positively or accurately portray the qualities of this NCO * the applicant is worth retaining, and will add value to his unit, the NCO Corps, and the Army as a whole c. NCOER, for the rating period 31 May 2012 through 30 May 2013, is a favorable annual report. The applicant was deployed during the rated period. (1) His rater was Major (MAJ) DRB, Chief, Future Operations. His senior rater was MAJ CLR, Assistant Chief of Staff (ACofS), Deputy G-3 for a Combined Joint Task Force (CJTF). The reviewer was COL PNB, ACofS, G-3, CJTF). The applicant's duty position was Future Operations NCOIC. (2) Part IV (Army Values/Attributes/Skills/Actions), the rater checked "Yes" for all blocks. (3) Part IV (Values/NCO Responsibilities) (Rater), the rater box checked "Excellence" for four blocks and "Success" for one (Leadership). The comments were very favorable, lauding his motivation, demonstrated skills, and exceptional abilities. (4) Part V (Overall Performance and Potential), the rater rated him "Among the Best." The senior rater rated his overall performance as "2" Successful (second highest rating for overall performance), and his overall potential as "1" Superior (highest rating for overall potential). The senior rater recommended promotion as well as selection for the Senior Leader Course, and noted the applicant's capability to accomplish any assigned mission. 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 NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. b. 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. c. Paragraph 3-6 addresses filing of NJP and provides 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 * 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 * 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 d. Paragraph 3-18 (Notification and Explanation of Rights), subparagraph h (Hearing), states: * in the presence of the commander, the Soldier will be allowed to personally present matters in defense, extenuation, or mitigation * the imposing commander is not bound by the formal rules of evidence before courts-martial, and may consider any matter reasonably considered to be relevant * punishment will not be imposed unless the commander is convinced beyond a reasonable doubt the Soldier committed the offense e. 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 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. 2. Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the OMPF. Table B-1 is a compilation of all forms and documents that have been approved by Department of the Army for filing in the OMPF and/or the interactive Personnel Electronic Records Management System. Table B-1 states the Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4b or item 5 of the DA Form 2627. 3. Army Directive 2014-06 (QMP) prescribes Army policy for QMP. Soldiers are considered for QMP if HRC has received such actions as GOMOR and poor ratings on an NCOER. This is true whether the document is filed in the performance or restricted folder of the Soldier's OMPF. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 19-11, states: a. Soldiers denied continued service under the QMP may appeal and request retention on active duty based on improved performance and/or presence of a material error in the Soldier's record. The Soldier may submit only one appeal, and requests for reconsideration of denied appeals are not authorized. The Soldier is permitted to include relevant material in support of the appeal. b. Appeals are addressed by the QMP appeals board, normally conducted in conjunction with Headquarters, Department of the Army centralized promotion selection boards, and this board considers all information previously reviewed by the QMP board, as well as any information included in the appeal. The mere fact a Soldier's performance has improved, or that the Soldier's file contains a material error, is not necessarily sufficient to overcome the reason for QMP selection. c. The appeal board may determine 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: 1. The applicant requests removal of the Article 15 accepted on 10 November 2012. His basis for removal is the NJP was not indicative of his overall performance and potential, as shown by the NCOER he received for the same period during which he received the NJP. 2. By regulation, the only basis for removal of an Article 15 is a determination that, under all the circumstances of the case, there is clear and compelling evidence of an injustice. The regulation further requires that the evidence show an unwaived legal or factual error occurred which clearly and affirmatively injured the substantial rights of the Soldier. 3. His Article 15 proceedings were conducted in accordance with law and regulation, and he was afforded all rights and due process. There is insufficient evidence of record to show he was harmed by either an unwaived legal or factual error. The evidence does not support the conclusion the DA Form 2627 was untrue or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003487 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003487 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2