ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF: 

                   BOARD DATE:  28 January 2019

                   DOCKET NUMBER:  AR20160013155


APPLICANT REQUESTS:  

* removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), accepted on 2 March 2008, from his official military personnel file (OMPF)
* personal appearance before the board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Memorandum from Office of the Under Secretary of Defense for Acquisition Technology and Logistics (USD (AT&L)), dated 6 December 2006
* DA Form 4856 (Developmental Counseling Form)
* DA Form 2627, accepted 2 March 2008
* DOD Instruction Number 5000.72, dated 26 March 2015

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states, in effect:

	a.  As a staff sergeant in the 173rd Airborne Brigade Combat Team, he received a Company Grade Article 15 in 2008, for an infraction in which he was placed into a Contractor Officer Representative (COR) position without training, nomination by his Commander, and appointment by the Contracting Officer.  Though he was present and one of three service members involved in the infraction, he was the only one held liable after even informing his Commander he physically did not commit the error.  At that time, he was not aware he was in a COR position.  He was simply tasked to cover down on another service member who was going on mid-tour leave while they were deployed to Afghanistan.  He received a previous Field Grade Article 15, which was also an injustice, and the punishment was vacated because of this incident.  

	b.  A COR is an individual designated in accordance with DFARS (Defense Federal Acquisition Regulation Supplement) subsection 201.602-2 and authorized in writing by the contracting officer to perform specific technical or administrative functions.  If the contracting officer designates a COR, the contractor will receive a copy of the written designation.  It will specify the extent of the COR's authority to act on behalf of the contracting officer.  The COR is not authorized to make any commitments or changes that will affect price, quality, quantity, delivery, or any other term or condition of the contract.

	c.  While at the Operational Contract Support Course at Fort Lee, VA from 
11-22 July 2016, the DFAR was a study reference needed for class participation and completion.  After learning the role of the COR, the class learned of the prerequisites.  It was then he discovered the injustice he had received.

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 22 September 2000.  

	b.  On 10 November 2007, he accepted Article 15 for willfully failing to obey a lawful command from a superior commissioned officer and making a false official statement on 2 occasions.  His punishment consisted of reduction to sergeant (SGT)/E-5, forfeiture of pay, both suspended until 10 May 2008, and 45 days extra duty and restriction.  

	c.  On 12 January 2008, he was counseled for dereliction of duty.  The DA Form 4856, stated:

* he disregarded his responsibilities in that he allowed a specialist to upload a military vehicle on a Local National transport destined for BAF (Bagram Airfield)
* he did not verify the vehicle was the one identified by to him by another noncommissioned officer (NCO) the evening before the transport
* he understood prior to this incident that no vehicles were to be shipped with sensitive items unescorted to Local National Jingle Truck (host nation delivery truck) 
* he was verbally counseled on 31 December 2007, for failure to meet the second part of the Fusion CLP (common loading point) upon arrival 
* the importance of ensuring vehicles arrive and depart that location in a timely manner was explained to him again
* the Plan of Action:

* he was replaced 
* the counselor would recommend Article 15
* the applicant would return to Fenty Airfield to work in a position with less responsibility and be proper trained on movement operations and ammunition movement

	d.  On 28 January 2008, the punishments were vacated for being derelict in the performance of his duties in that he negligently failed to verify that the correct vehicle was being sent to Bagram Airfield as it was his duty to do so.  

	e.  On 2 March 2008, he accepted an Article 15 for the same offense.  The DA Form 2627 shows:

* he declined trial by a court-martial and opted for closed hearing 
* the applicant was afforded the opportunity to consult with counsel before nonjudicial punishment (NJP) was imposed
* after imposition, he was given the opportunity to appeal to the next superior authority and he decided not to appeal
* he endorsed the NJP, which indicated that the DA Form 2627 would be placed in the restricted fiche of his OMPF
* the Article 15 was moved to the performance section on the OMPF in accordance with Army Regulation 27-10 (military justice), paragraph 3-6

	f.  24 April 2009, he enlisted in the U.S. Army Reserve, with an effective date of after he was released or discharged from active duty.

	g.  On 28 June 2009, he was honorably released from active duty as a SGT/E-5.  He completed 8 years 9 months, and 7 days.  

4.  The applicant provided:

	a.  Memorandum from USD (AT&L), dated 6 December 2006, states:

* the role of the COR
* DOD requirements related to designation of CORs are contained in DFARS
* ensure that a properly trained COR is designated for contracts for services in support of DoD requirements before contract performance begins
* properly trained CORs are identified on active contracts for services in support of DoD requirements
* ensure that the contribution of CORs in assisting in the monitoring or administration of contracts is addressed as appropriate in the performance reviews of individuals who perform COR duties
* COR training is available via a web-based module

	b.  DA Form 4856, counseling the applicant regarding events which led to his vacation of Article 15 punishment and imposition of an Article 15.

	c.  DA Form 2627, accepted 2 March 2008, for dereliction of duty on 8 January 2008.

	d.  DOD Instruction Number 5000.72, dated 26 March 2015:

* established policies and standards, assigns responsibilities, and provides procedures to certify CORs to implement the recommendation of the DOD Panel on Contracting Integrity set out in the 2008 report to Congress
* established uniform guidance for identification, development, certification, and management of CORs within the DOD
* implemented Deputy Secretary of Defense Memorandum
* incorporated and cancels the USD (AT&L) Memorandum

4.  By regulation, the DA Form 2627 is authorized to be filed in either the performance or restricted section of the official military personnel file (OMPF).  Applications for removal from the OMPF based on an error or injustice will be made to the ABCMR.  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.

5.  By regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.

BOARD DISCUSSION:

After reviewing the application and all supporting evidence, as well as the statement from the applicant, the Board found no evidence of error or injustice in the administration of or filing of the applicant’s nonjudicial punishment.  Additionally, based upon the totality of the circumstances, the Board found no other reason to mitigate the punishment by removing the Article 15s from his Official Military Personnel File. 

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
SIGNATURE:

				 							___________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.




REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice and implemented the Manual for Courts-Martial. 

	a.  It provided that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment (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 (Filing Determination) 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. 

		(1)  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.

		(2)  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.

		(3)  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.
		(4)  If a record of nonjudicial punishment has been designated for filing in a Soldier’s restricted section, the Soldier’s OMPF will be reviewed to determine if the restricted section contains a previous record of nonjudicial punishment.  In those cases in which a previous DA Form 2627, that has not been wholly set aside has been filed in the restricted section and in which prior to that punishment, the Soldier was in the grade of SGT or higher, the present DA Form 2627 will be filed in the performance section.

	d.  Paragraph 3-18 (Notification and Explanation of Rights), subparagraph g (Hearing), states:

		(1)  In the presence of the commander, the Soldier will be allowed to personally present matters in defense, extenuation, or mitigation.

		(2)  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.

		(3)  Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt the Soldier committed the offense.

	e.  Paragraph 3-28 (Setting Aside and Restoration) states the punishment can be set aside and all rights, privileges, and/or property can be restored.  When NJP is wholly set aside, the commander who imposed the punishment, a successor in command, or a superior authority can set aside all punishment imposed as well as the findings.  When the findings are set aside, the NJP is to be removed from the OMPF.  In all cases, the basis for removal is a determination that, under all the circumstances of the case, a clear injustice has occurred.  A clear injustice means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  

	f.  Paragraph 3-37 (Distribution and filing of DA Form 2627 and Allied Documents) states the original of DA Form 2627 is filed in the performance folder of the OMPF, which is routinely used by career managers and selection boards for the purpose of assignment, promotion, and schooling selection.  It also states "give a photocopy of the completed action with allied documents to the Soldier who was punished."

	g.  Paragraph 3-43 (Transfer or Removal of Records of NJP) contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for removal 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.


3.  AR 600-8-104 (Military Personnel Information Management Records), in effect at the time, provided policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  It is linked to AR 600–8 (Military Personnel Management) and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the MILPER Information Management/Records.  Table 
2-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the MILPER.  DA Form 2627 is listed as an authorized form for filing in the MILPER records.  The guidelines for filing an Article 15 are found in AR 27-10.  Currently, the U.S. Army Human Resources Command Army Personnel Records Division (APRD) updates the list of Require Documents for filing in the OMPF quarterly.  The new list of Required Documents will supersede the list in Appendix B of AR 600-8-104.  Article 15s are filed in the performance or the restricted folder of the OMPF.  

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.


ABCMR Record of Proceedings (cont)	 AR20160013155


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