ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 March 2019 DOCKET NUMBER: AR20160017532 APPLICANT REQUESTS: removal of an Article 15 from his official military personnel file (OMPF). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marriage Certificate * Birth Certificate * Certificates for awards of the Army Commendation Medal and Army Achievement Medal * Certificates of Training, Achievement, and/or Appreciation * Noncommissioned Officer Evaluation Reports (NCOER) * DA Form 1059 (Service School Academic Evaluation Report)’ 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: * He was an E-4 and began dating an E-3 who had been separated from husband at the time, and was assigned to the same unit but in different platoons * He was promoted to E-5 and continued to serve in the same unit/position but he did not have any supervision over her * This is not meant as an excuse; rather to show the Board that their relationship did not start out by meeting the definition of fraternization * Almost 9 years has passed and he wants to address this issue; he did not fight it at the time because he admits what he did was wrong * If this Article 15 remains in his record, it would damage his chances for career enhancement * He overcame this experience and continued to serve without any further disciplinary actions; his success and accomplishments are documented by my promotions, awards and certificates * He was not taking advantage of a young Soldier; they continued their relationship and for 4 years and have been married for the last 6 years; they are now the parents of a 5-year old child * He has conducted himself in accordance with the Army Values and he is a good NCO 3. The applicant provides: * Multiple certificates of achievement, appreciation, and training * Multiple award certificates for the Army Achievement Medal and/or Army Commendation Medal * Multiple other certificates * Diploma and an academic evaluation report * Multiple NCOERs between 2012 and 2015 * Marriage and birth certificates 4. Review of his service records shows: a. He enlisted in the Regular Army on 4 June 2003 and he held military occupational specialty 21T (Terrain Data Specialist). b. He served in Iraq from 4 November 2004 to 8 September 2005 and from 8 July 2007 to 5 October 2008. c. On 1 December 2007, the Commander, 100th Engineer Company, 20th Engineer Brigade, Iraq advised the applicant that he was considering whether he should be punished under Article 15, Uniform Code of Military Justice (UCMJ) for violating: * Article 92, in that on divers occasions at Camp Victory, Iraq, between 9 July and 26 October 2007 failing to obey a lawful order by wrongfully having an inappropriate relationship with private first class LDC * Article 134, in that on divers occasions at Camp Victory, Iraq, between 9 July and 26 October 2007, wrongfully having sexual intercourse with PFC LDC, a married woman, not his wife : d. After having been afforded the opportunity to consult with counsel, the applicant indicated he did not demand trial by a court-martial and elected a closed Article 15 hearing. He further declined someone to speak on his behalf and indicated he would not present matters in defense in person. e. On 3 December 2007, he accepted NJP under the provisions of Article 15 of the UCMJ, for violating Articles 92 and 134 of the UCMJ. His punishment – as indicated on the DA Form 2727 – consisted of reduction to specialist/E-4, forfeiture of pay for 2 months, and 45 days of restriction and extra duty. f. The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's OMPF. He elected not to appeal. g. The Article 15 is filed in the performance section of his OMPF. h. He was honorably released from active duty on 3 March 2009. i. He enlisted in the U.S. Army Reserve (USAR) on 4 March 2009. He continues to serve in the USAR today. 5. By regulation: a. For Soldiers in the ranks of SGT and above, the original Article 15 is sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance section or restricted section of 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. b. Applications for removal of an Article 15 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. c. 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 normally will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board agreed the UCMJ served its purpose for the punishment and recommends full removal form the applicant’s OMPF. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing DA Form 2627, dated 3 December 2007, from his official military personnel file. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 and implements the MCM. It provides that the 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 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. A minor offense includes misconduct not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial. It does not include misconduct of the type that, if tried by a general court-martial, could be punished by a dishonorable discharge or confinement of more than one year. a. Paragraph 3-6 addresses the filing of an 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. In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with 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. b. Paragraph 3-14 provides that the commander with the authority to impose the Article 15 must ensure the matter is investigated promptly and adequately. The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident(s). The investigation should address whether an offense was committed, if the Soldier in question was involved, and the character and military record of the Soldier. Usually investigations are informal and consist of interviews with witnesses and/or review of police or other informative reports. The commander after reviewing the evidence determines a Soldier probably has committed an offense and that NJP is appropriate, he or she can take appropriate action. c. Paragraph 3-28 describes setting aside and restorations. 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. 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 un-waived 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. d. Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT 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 section or restricted section of 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. 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. AR 600-8-104 (Army Military Human Resources Record (AMHRR) provides policies, operating tasks, and steps governing the AMHRR. The AMHRR is an administrative record as well as the official permanent record of military Service belonging to a Soldier and it includes the OMPF. Table B-1 is a compilation of all forms and documents, which have been approved by Department of the Army for filing in the AMHRR and/or iPERMS. Table B-1 provides instructions regarding the filing of documents in the OMPF. The Army Personnel Records Division (APRD) updates the list of Authorized Documents for filing in the AMHRR quarterly. The new list of Authorized Documents will supersede the list in Table B-1, Appendix B of AR 600-8-104. The guidelines for filing an Article 15 are found in AR 27-10. //NOTHING FOLLOWS//