BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20170000627 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: 9 January 2018 DOCKET NUMBER: AR20170000627 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: 9 January 2018 DOCKET NUMBER: AR20170000627 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, in effect, removal of a DA Form 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)), dated 23 October 2015, from the restricted folder of her official military personnel file (OMPF). She further requests a personal hearing before the Board. 2. The applicant states: a. She received an Article 15 for updating her husband's record in the electronic Military Personnel Office (eMILPO) automated system. She worked in the battalion S-1 and serves in military occupational specialty (MOS) 42A (Human Resources Specialist). b. She completed her punishment and learned what she did was wrong. She has no other derogatory information in her record or any prior offenses. She did not know the severity of updating someone else's records outside of her own unit. c. She submitted a withdrawal request for the Article 15, which was denied. She has been in the Army for eight years and fully intends to stay in for twenty years. She does not want this derogatory information in her record to hinder her career progression in the future. 3. The applicant provides a copy of her DA Form 2627, dated 23 October 2015, and the entire contents of the restricted folder of her OMPF. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 22 May 2008. She was promoted to her current rank of sergeant (SGT) on 1 April 2014 and is currently stationed at Fort Jackson, SC. 2. The applicant accepted nonjudicial punishment (NJP) on 23 October 2015, under the provisions of Article 15 of the UCMJ for being derelict in the performance of her duties, specifically for failing to follow the eMILPO Acceptable Use Policy, as it was her duty to do, when she updated her husband's record on occasions during the period 13 November 2014 through on or about 29 April 2015. The imposing commander directed that the subject Article 15 be filed in the restricted folder of her OMPF. She elected to appeal; however, her appeal was denied by the next superior authority. 3. The subject DA Form 2627, dated 23 October 2015, is filed in the restricted folder of her OMPF. 4. The applicant submitted the following documents from her restricted folder of her OMPF in support of her application: a. Three Memoranda for Record, each dated 27 August 2015, subject: Army Regulation 15-6 Investigation, which indicate an investigation was conducted regarding the erroneous manipulation of electronic database transactions concerning her husband. b. DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 15 September 2015, which shows the applicant's was advised of her rights in regard to questioning concerning a violation of Article 92 - failure to obey order or regulation. This form was accompanied by DA Form 2823 (Sworn Statement), in which she stated she updated some of her husband's personnel records. c. Additional documents, including her and her husband's Enlisted Record Brief (ERB), a developmental counseling form, two DA Forms 268 (Report to Suspend Favorable Personnel Actions (Flag)), an extract of Army Regulation 600-8-104 (Unfavorable Information), eMILPO and Enterprise Datastore Acceptable Use Policy request and access forms, and other documents, to include her marriage certificate. d. A memorandum to her commander from her defense counsel, dated 22 October 2015, requesting that her Article 15 be withdrawn or in the alternative not finding her guilty of the charges. This is presumed to be her appeal to the superior authority, which was denied. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 2. 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. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. 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. Paragraph 3-6a addresses the 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 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 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, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance folder. b. 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 OPMF. The decision to file the original DA Form 2627 in the performance folder or restricted folder 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. However, the superior authority cannot direct that a UCMJ, Article 15 report be filed in the performance folder that the imposing commander directed to be filed in the restricted folder. c. Paragraph 3-43 contains guidance for the transfer or removal of DA Forms 2627 from the OMPF. It states that applications for removal of an NJP from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further states that 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. Army Regulation 600-37 prescribes the policies and procedures regarding unfavorable information considered for inclusion in official personnel files. a. 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. b. It states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Table 2-1 (Composition of the OMPF) shows the DA Form 2627 is filed in either the performance or restricted folder of the OMPF as directed in item 5 of the DA Form 2627. DISCUSSION: 1. The applicant acknowledges that her actions, which led to her receiving the subject Article 15, were wrong. She would like the subject Article 15 removed from her restricted folder of her OMPF so it does not hinder her career progression in the future. 2. The available evidence confirms her NJP proceedings were conducted in accordance with law and regulation and the DA Form 2627 is properly filed in the restricted folder of her OMPF as directed by the imposing commander. There is no evidence of record and the applicant provides no evidence to show the DA Form 2627 was imposed in error or that it was unjust. 3. In accordance with applicable regulations, justification for removal from the OMPF of properly-completed, facially-valid documents, such as the DA Form 2627, requires clear and compelling evidence showing that the document is in error or unjust, or the applicant must present compelling evidence to warrant removal as a matter of equity. 4. The applicant's request for a personal appearance hearing was carefully considered. 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. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this 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) AR20170000627 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170000627 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2