ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 August 2019 DOCKET NUMBER: AR20170004502 APPLICANT REQUESTS: removal of his nonjudicial punishment from his military personnel files. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant states he is no longer serving on active duty and his time in the Individual Ready Reserve (IRR) is coming to an end. It has been more than three years since he received the Article 15. He feels as though it will serve as a roadblock for him to obtain employment in the future. He is not disputing that he deserved the punishment, but it would be in his best interest to not have to disclose that unfortunate incident to any future employers. He is unsure if he is reading Army Regulation (AR) 27-10 (Military Justice), paragraph 3-37 (Distribution and Filing of DA Form 2627 and Allied Documents) correctly, but it states that after two years the record should be destroyed. He is asking for it to be removed from his military personnel file whether he read that correctly or not. He was discharged honorably and does not think it is just that one poor error in judgement should stain otherwise exemplary military service. 2. A review of the applicant’s service record shows: a. On 20 January 2010, he enlisted in the Regular Army. b. He served in various stateside and overseas assignments. He was deployed to Iraq in support of Operation New Dawn from 22 January 2011 to 8 January 2012. c. On 9 December 2013, he accepted nonjudicial punishment (NJP). The punishment imposed included reduction to specialist (E-4), suspended, forfeiture of $1,096 pay per month for two months, extra duty and restriction for 45 days, and oral reprimand. The commander directed it to be filed in the restricted section of his Official Military Personnel File (OMPF). The NJP was imposed for the following specifications that occurred on 8 November 2013: * one specification of resisting apprehension * one specification of willfully damaging a military police patrol vehicle * one specification of wrongfully and recklessly engaging in conduct likely to cause death or grievous bodily harm to self * one specification of drunk and disorderly * two specifications of wrongfully communicating a threat to kill * two specifications of orally communicating certain indecent language d. On 19 January 2015, he was discharged from active duty under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 4 (Separation for Expiration of Service Obligation), issued an honorable discharge, and transferred to the U.S. Army Reserve (USAR) Control Group. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that the completed 5 years of active service. It also shows that he was awarded or was authorized the: * Army Commendation Medal * Army Achievement Medal (4th Award) * Meritorious Unit Commendation * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Iraq Campaign Medal with Campaign Star * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) e. On 15 August 2017, he was release from the USAR Control Group and transferred to the IRR. 3. By regulation (AR 27-10), a. Soldiers who are at the rank of specialist or corporal and below (prior to punishment) the original will be filed locally in unit nonjudicial punishment or unit personnel files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority, whichever occurs first. For all other Soldiers, the original will be sent to the appropriate custodian for filing in the OMPF. b. Applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the ABCMR. 4. By regulation (AR 600-8-104), once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 4b of the DA Form 2627). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. He contends the NJP can be removed after 2 years. Regulatory guidance shows NJP can be removed after 2 years when filed locally; his NJP was placed in his restricted folder. The evidence of record confirms the contested Article 15 imposing commander considered the evidence and determined the applicant committed the offense in question. By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the charged offense(s). The applicant did not provide evidence that clearly exonerates him or shows that there was a clear injustice. In fact, he admitted to the offense. However, he contends the contested Article 15 should not have to be disclosed to future employers. The governing regulation allows for the transfer of Article 15s within the OMPF when they have served their purpose; however, not their removal from the OMPF. For example, transferring an Article 15 from the performance section (most visible) to the restricted section (least visible) of the OMPF. In this case, the contested Article 15 was filed in the restricted section or least visible section of his OMPF. 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. 10/3/2019 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. Army Regulation (AR) 27-10, (Military Justice), in effect at the time, prescribes the policies and procedures pertaining to the administration of military justice. a. Paragraph 3-6 (Filing Determination) states a commander’s decision on whether to file a record of nonjudicial punishment (NJP) on the performance section of a Soldier’s official military personnel file (OMPF) is as important as the decision on whether to impose 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 section. 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 section. b. Paragraph 3–37 (Distribution and Filing of DA Form 2627 and Allied Documents) states for Soldiers who are at the rank of specialist or corporal and below (prior to punishment) the original will be filed locally in unit nonjudicial punishment or unit personnel files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority, whichever occurs first. For all other Soldiers, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 on the performance section or the restricted section in the OMPF will be made by the imposing commander at the time punishment is imposed. The imposing commander’s filing decision will be indicated in item 4b of DA Form 2627. A change in the filing decision should be recorded in block 8 of DA Form 2627. d. Paragraph 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) contains guidance for transfer or removal of records of NJP from the OMPF. It states that 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 the performance portion of the OMPF will, on approval of the member’s application, be processed in accordance with the instructions of the ABCMR. 2. 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. a. Paragraph 3-6 (Authority for Filing or Removing Documents in the AMHRR Folders) provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) shows a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 4b of the DA Form 2627). //NOTHING FOLLOWS//