BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160004760 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 BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160004760 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. BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160004760 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 record nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), dated 21 March 2000, from his Official Military Personnel File (OMPF). 2. The applicant states, in effect, that the Article 15 was unjust and it should be removed from his OMPF for the following reasons: a. He was charged with and punished for failing to obey a lawful order; however, his misconduct was classified as a sexual offense, class I. b. He was not afforded the opportunity to seek legal counsel because he was only at his home station for less than 24 hours before returning to a field training exercise (FTX). c. He was not informed that he had an option to appeal the findings. d. He was to start his punishment upon his return from the FTX (15 days later). d. He was not notified that the Article 15 would be filed in his permanent record and he only recently found out the document was in his record. e. In spite of this incident, he has earned four Good Conduct Medals, had successful performance evaluations, and performed in positions of great responsibility and accountability, to include serving as a first sergeant (1SG) for 37 consecutive months. 3. The applicant provides: * two character references * Army Good Conduct Medal (4th Award) orders * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 21 March 2000 * four DA Forms 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)) completed during the period June 1998 to June 2015 CONSIDERATION OF EVIDENCE: 1. The applicant is currently a master sergeant serving on active duty. 3. A review of his OMPF found that the Article 15 in question was filed in the restricted section of his OMPF on 4 August 2000. This form shows that on 21 March 2000: a. He received notification that he was being considered for punishment under the provisions of Article 15, UCMJ, for failing to obey a Joint Ethics Regulation, Department of Defense Directive 5550.7-R, paragraph 2-301(a), dated 25 March 1996, by wrongfully visiting pornographic websites on a government computer. b. The applicant indicated with his initials that, after having been afforded the opportunity to consult with counsel, he elected: * not to demand trial by court-martial * to have a closed hearing * to have someone speak on his behalf * to present matters in defense, mitigation, and/or extenuation c. The proper authority, having considered the matters presented by the applicant, imposed the punishment of forfeiture of $150.00 for one month and extra duty for 14 days. He also directed the original DA Form 2627 be filed in the restricted section of the applicant’s OMPF. The applicant was advised that he had five calendar days to appeal the punishment imposed. d. He accepted NJP under the provisions of Article 15 of the UCMJ and indicated with his initials that he did not want to appeal his punishment. 4. He provides evidence showing that his performance, leadership abilities, and capabilities have proven to be at a consistently high level. 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. Paragraph 3-2 provides that a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to NJP. 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 whom 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. b. Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance folder of a Soldier's OMPF is as important as the decision on whether to impose NJP punishment itself. In making a filing determination for a record of NJP which does not include a finding of guilty to a sex-related offense, 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 folder. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, evidence of serious character deficiency, or substantial breach of military discipline. In such cases, the record should be filed in the performance folder. c. Paragraph 3-37b(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 folder or restricted folder 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 superior authority. d. Parapgraph 3-43, Table 3-2 (Removal of NJP from the Military Personnel Files) rule 3, states that if the Soldier applies to ABCMR for transfer of records of NJP punishment from the performance portion of the OMPF on the basis that the evidence exists which demonstrates error or injustice to a degree justifying removal, then the record of NJP (DA Form 2627) filed in the performance portion of the OMPF will, on approval of the member’s application, be processed in accordance with the instructions of the ABCMR. 2. Army Regulation 600-37 (Unfavorable Information) prescribes the policies and procedures regarding unfavorable information considered for inclusion in official personnel files. It states once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. DISCUSSION: 1. The imposing authority determined that the applicant violated the UCMJ and on 21 March 2000 he accepted NJP, rather than demand trial by court-martial, for viewing pornographic websites on a government computer. The imposing commander directed the Article 15 be filed in the restricted section of his OMPF. On 4 August 2000 the Article 15 was filed accordingly. The evidence of record does not support his contention that he was denied access to counsel. 2. The applicant’s NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the restricted section of his OMPF as directed by the imposing commander. Although he has continued to progress and perform in a noteworthy manner, there is no evidence in the available records that shows the DA Form 2627 is untrue or unjust. In order to remove a document from the OMPF there must be clear and convincing evidence showing the document is 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) AR20160004760 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004760 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2