ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 March 2019 DOCKET NUMBER: AR20160015254 APPLICANT REQUESTS: removal of an Article 15 from her official military personnel file (OMPF) and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 she received an Article 15 from her last commander. The Article 15 was given for disobeying a direct order when her first line leader, E-8 and the Commander demanded all of her medical documentation, or as put by the written order to her from the commander, he demanded all of her "Protected Health Information" (PHI). This was an unlawful order. Neither her first line leader, E-8, nor her Commander could order her to supply them with all of her PHI in accordance with HIPPA (Health Insurance Portability and Accountability Act). She appealed to the higher Command, Army Reserve Careers Division, but her appeal was denied stating the order was lawful. Her LSO (possibly legal officer) at the time stated it was not a lawful order because it was too broad and there was no justified reason for the request. 3. Review of the applicant's service records show: a. 8 November 1996 - she enlisted in the U.S. Army Reserve. b. 14 July 2002 - she entered active duty. c. 1 March 2015 - her commander notified her that he was considering whether he should be punished under Article 15, Uniform Code of Military Justice (UCMJ) for violating the UCMJ as follows: a. * one specification of failing to go to her appointed place of duty, Camp Parks, CA, on or about 17 February 2015 * one specification of willfully disobeying a lawful verbal command from Colonel (COL) Ma , her superior commissioned officer to provide her Protected Health Information (PHI)/medical documentation on 9 February 2015 * one specification of willfully disobeying a lawful verbal command from COL Ma , her superior commissioned officer to provide her PHI/medical documentation on 13 February 2015 * one specification of willfully disobeying a lawful verbal command from COL Ma , her superior commissioned officer to provide her PHI/medical documentation on 17 November 2014 * one specification of failing to request convalescent leave by wrongfully admitting to outpatient surgery * one specification of failing to obey a lawful order to report medical documents to the nearest military installation or Regional Support Command for reevaluation of her military profile d. Having been afforded the opportunity to consult with counsel and understanding her rights, the applicant decided to decline trial by a court-martial and opted for an open hearing. She further declined a person to speak on her behalf and elected to present matters in her own defense in person. e. 7 March 2015 - the imposing officer found her guilty of violating Article 90, UCMJ. three specifications of willfully disobeying a lawful verbal command from COL Ma , her superior commissioned officer to provide her PHI/medical documentation on 9 February 2014, 17 November 2014, and 13 February 2014. (1) Her punishment consisted of a forfeiture of 1/2 month pay for 2 months (suspended for 120 days) and an oral reprimand. (2) The imposing commander directed filing the DA Form 2627 in the performance folder of his OMPF, as indicated in item 4b (filing decision). f. 7 March 2015 - she was advised of her right to appeal to the next higher authority. She appealed and submitted additional matters. g. 24 March 2015 - a military attorney reviewed the proceedings and opined that the proceedings were conducted in accordance with law and regulation and the punishments were imposed were not unjust nor disproportionate to the offense committed. h. 24 March 2015 - the higher commander (appeal authority) granted partial relief by dismissing count 4 of the Article 15 and 25 March 2015, she acknowledged receipt of the appellate authority's decision. a. 4. By regulation (AR 15-185 (ABCMR)), the ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. 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. 5. By regulation (AR 27-10), the imposing commander’s filing decision will be indicated in item 4b of DA Form 2627. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. 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. * The applicant was provided a defense attorney * she was given the right to demand trial by court-martial * she was afforded the opportunity to appeal the Article 15 through the proper channels * she appealed and the appellate authority too action on her appeal BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. After careful deliberation, the Board concluded that the commander and Sr. NCO had the proper authority to order the applicant to provide personal health information and the applicant failed to do so. Therefore, the basis for the NJP was justified and no error or injustice occurred. For that reason, the Board recommended denying the applicant's requested relief. 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: 1. The evidence of record and independent evidence provided by the applicant are sufficient to render a decision without a personal appearance hearing. 2. 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. 4/1/2019 X CHAIRPERSON Signed by: 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) prescribes the policies and procedures pertaining to the administration of military justice. a. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. It states the decision whether to file a record of NJP in the performance folder of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed. b. Paragraph 3-28, setting aside and restoration, this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the Article 15 itself is set aside and removed from the Soldier’s records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. c. Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. It states applications for removal of a DA Form 2627 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 there must be clear and compelling evidence to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR. 3. AR 600-8-104 (Army Military Human Resource Records (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly 1. filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of AR 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 on the DA Form 2627). Allied documents accompanying the DA Form 2627 will be filed in the restricted folder. 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.