IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20160007602 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: 14 June 2016 DOCKET NUMBER: AR20160007602 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. IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20160007602 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 the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), dated 13 April 2015, and allied documents that are filed in the restricted section of her Official Military Personnel File (OMPF) in her Army Military Human Resource Record (AMHRR). 2. The applicant states that she is no longer in the same unit, she has received two Noncommissioned Officer Evaluation Reports (NCOERs), and one year has elapsed since imposition of the nonjudicial punishment (NJP). 3. The applicant provides copies of the DA Form 2627 and two DA Forms 2166-8 (NCOER). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 19 February 2008. She was awarded military occupational specialty 42A (Human Resources Specialist). She was promoted to sergeant/pay grade E-5 effective 1 April 2014. 2. A review of the applicant's OMPF/AMHRR revealed a DA Form 2627, dated 13 April 2015. It shows, in pertinent part, that punishment was imposed for her misconduct under the UCMJ, Article 134, for orally communicating certain indecent language to another Soldier, on 10 March 2015, this being prejudicial to good order and discipline and being of a nature to bring discredit upon the armed forces. a. The DA Form 2627 also shows, on 15 April 2015, the applicant: (1) was advised of her rights and was afforded the opportunity to consult with counsel; (2) did not demand a trial by court-martial; and (3) requested a closed hearing; a person to speak in her behalf; and that matters in defense, extenuation, and/or mitigation would be presented. b. On 15 April 2015, in a closed hearing, having considered all matters presented, the Commander, Headquarters and Headquarters Battery, Division Artillery (DIVARTY), 3rd Infantry Division (3ID), Fort Stewart, GA, found the applicant was guilty of some specifications of the misconduct. (Accordingly, he "lined-thru" the misconduct pertaining to violation of Article 92, UCMJ.) c. His imposed punishment was extra duty for 14 days; restriction to the limits of the company area, dining facility, medical facility, and place of worship for 14 days (suspended, to be automatically remitted if not vacated before 12 October 2015); and oral reprimand. d. Item 4b (I direct the original DA Form 2627 be filed in the:) shows he initialed the box for "Restricted section of the OMPF." Item 10 (Allied Documents and/or Comments) lists the allied documents. e. The applicant indicated that she would appeal the NJP and submit additional matters. f. On 23 April 2015, the reviewing Judge Advocate General’s (JAG) Corps officer considered the applicant's NJP and appeal and found the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offense committed. g. On 27 April 2015, the Commander, 1st Battalion, 76th Field Artillery, DIVARTY, 3ID, considered all matters presented in the appeal and granted the appeal, as follows: * oral reprimand remains appropriate and stands as adjudicated * appeal granted for extra duty and restriction (i.e., adjudication to read extra duty for zero (0) days and restriction for zero (0) days) h. The DA Form 2627 and allied documents (a total of 17 pages) are filed in the restricted section of the applicant's OMPF. 3. In support of her application the applicant provides the following additional documents: a. An NCOER covering the period 1 April 2014 through 31 March 2015 that shows the applicant's rater indicated she possessed the seven Army Values. Part IV (Values/NCO Responsibilities) shows one rating of "Excellence" (Physical Fitness and Military Bearing); three ratings of "Success" (Competence, Training, and Responsibility and Accountability); and one rating of "Needs Improvement (Some)" (Leadership) with her overall potential for promotion and/or service in positons of greater responsibility as "Marginal." The senior rater assessed her overall performance as "Fair (4)" and her potential for promotion and/or service in positons of greater responsibility as "Fair (4)." b. An NCOER covering the period 1 April 2015 through 16 November 2015 that shows the applicant's rater indicated she possessed the seven Army Values. Part IV shows two ratings of "Excellence" (Physical Fitness and Military Bearing, and Training), three ratings of "Success" (Competence, Leadership, and Responsibility and Accountability) with her overall potential for promotion and/or service in positons of greater responsibility as "Fully Capable." The senior rater assessed her overall performance as "Successful (1)" and her potential for promotion and/or service in positons of greater responsibility as "Superior (1)." REFERENCES: 1. Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. a. Table B-1 (Authorized Documents) provides guidance for filing the DA Form 2627. The DA Form 2627 will be filed in either the performance or restricted section of the OMPF, as directed in item 4b of the DA Form 2627. b. The restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this section is controlled. It may not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Headquarters, Department of the Army selection board proponent. Documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army. 2. 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; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 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. DISCUSSION: 1. The evidence of record shows the NJP was properly administered and the DA Form 2627 and allied documents are properly filed in the restricted section of her OMPF. 2. The governing regulation provides that the commander must weigh 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. a. The commander who imposed the NJP against the applicant directed the DA Form 2627 be filed in the restricted (vice the performance) section of the applicant's OMPF. b. The NJP and applicant's appeal were reviewed by a JAG Corps officer, who found the proceedings were conducted in accordance with law and regulation and that the punishment imposed was neither unjust nor disproportionate to the offense committed. c. Subsequent to the review, the appeal authority acted favorably on the NJP with respect to mitigation of the punishment imposed. It is reasonable to conclude the appeal authority was persuaded by the applicant's appeal for leniency. However, this action cannot be taken to indicate the applicant did not commit the misconduct. 3. By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal. a. There is no evidence of record that shows the NJP was imposed in error or that it was unjust. b. There are no provisions for removing a DA Form 2627 from the restricted folder of the OMPF based on favorable NCOERs or the passage of time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007602 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007602 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2