IN THE CASE OF: BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20170005002 BOARD VOTE: ___x____ ___x____ ____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20170005002 BOARD DETERMINATION/RECOMMENDATION: 1. 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 from his Official Military Personnel File the DA Form 2627, dated 16 March 2013, and all allied documents that are filed in the performance and the restricted sections of his Official Military Personnel File, including copies of those documents that may be filed in other sections of his Army Military Human Resource Record and any other personnel records. 2. To ensure this decision results in no unintended harm to the individual concerned, this Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing. The Record of Proceedings and associated documents will not be filed in the individual's Official Military Personnel File or any other section of the Army Military Human Resource Record. ___________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. IN THE CASE OF: BOARD DATE: 5 December 2017 DOCKET NUMBER: AR20170005002 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 removal of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), dated 16 March 2013, and allied documents that are filed in his Official Military Personnel File (OMPF). 2. The applicant states the nonjudicial punishment (NJP) was imposed by his Battalion Commander (Lieutenant Colonel (LTC) L.A. D____) and resulted in his reduction to the rank of specialist (SPC)/pay grade E-4. The applicant appealed the NJP and the Brigade Commander (Colonel (COL) J.R. N____, Jr.) wholly set aside the punishment. As a result, his rank of sergeant (SGT)/pay grade E-5 was reinstated and all of his rights were fully restored. a. He states, at the time, he was stationed at a remote Forward Operating Base in Afghanistan and he never received a copy of the DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) that overturned the NJP. He adds, "All I received was word from my First Sergeant that my rank was restored and to continue to drive on." b. He was promoted to staff sergeant (SSG)/pay grade E-6. While preparing for the sergeant first class promotion selection board, he realized that the DA Form 2627 and allied documents are filed in his OMPF. 3. The applicant provides a self-authored statement (summarized above) and copies of the DA Form 2627, his letter of appeal, and a memorandum from the Brigade Commander. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests removal of the DA Form 2627, dated 16 March 2013, and allied documents that are filed in the applicant's OMPF. 2. Counsel defers to the applicant. 3. Counsel provides no additional documentary evidence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 8 August 2005. Through a series of reenlistments he has continued to serve in the RA. 2. He is currently serving on active duty in the rank of SSG (E-6) in military occupational specialty 88H (Cargo Specialist). 3. A review of the applicant's OMPF revealed a DA Form 2627, initiated on 7 March 2013 (pages 1, 2, 5, and 6 of 6 pages; they are not clear or completely legible), imposed as punishment for his misconduct near Shindand Airfield, Afghanistan, on 6 February 2013, for violation of the UCMJ, Article 128 (Assault). a. The DA Form 2627 shows LTC L.A. F____, Commander, 393rd Combat Service Support Battalion, imposed the NJP. It also shows in: b. item 3 (Having been afforded the opportunity to consult with counsel and understanding my rights listed above and on page three of this form, my decisions and options (initial appropriate blocks, date, and sign)), does not show any initials in the blocks; it shows the applicant's signature and it is dated 7 March 2013. c. Item 4 shows, on 16 March 2013, in an open hearing having considered all matters presented, the Battalion Commander found the applicant guilty of all specifications. It also shows in item 6 (The following punishment is imposed): "Reduced to Specialist (E-4); extra duty for 45 days." He directed that the DA Form 2627 be filed in the performance section the applicant's OMPF. d. Item 5 shows the applicant indicated that he would appeal and submit additional matters to the Commander, 35th Brigade, Reserve Component –Southwest and 3rd Infantry Division. e. The DA Form 2627 is filed in the performance section of the applicant's OMPF. The allied documents (18 pages) are filed in the restricted section of his OMPF and include the following – * applicant's letter of appeal (2 pages) * certification of Article 15 video * two DA Forms 4856 (Developmental Counseling Forms) * four DA Forms 2823 (Sworn Statements) * two DA Forms 268 (Report to Suspend Favorable Personnel Actions) * his Enlisted Record Brief f. A further review of the restricted section shows a copy of a memorandum, dated 16 December 2016, subject: Appeal Letter for SSG [Applicant], signed by COL J.R. N____, Jr., U.S. Army (Retired), is filed under the title "Document Deny/Part Deny Appeal Remove Unfavor[able] Info[rmation]." 4. A review of the applicant's available military personnel records failed to reveal a copy of a DA Form 2627-2. 5. A review of his OMPF revealed five Noncommissioned Officer (NCO) Evaluation Reports (NCOERs) that provide an assessment of his service spanning the period from 1 September 2012 to 10 February 2017. a. The NCOER covering the period 1 September 2012 through 31 August 2013 (i.e., the period during which the NJP was imposed) shows he held the rank of SGT (E-5) with a date of rank of 1 September 2012. A review of the NCOER failed to reveal any reference to the matter under review (or any other adverse information or comments). b. The remaining four NCOERs show he held the rank of SGT (E-5) through 31 March 2015 and that he was promoted to SSG (E-6) on 1 April 2015. 6. His Enlisted Record Brief, dated 15 December 2016, shows in section III (Service Data), in pertinent part, he was promoted to – * SPC (E-4) on 8 August 2007 * SGT (E-5) on 1 September 2012 * SSG (E-6) on 1 April 2015 7. In support of his request the applicant provides a copy of a memorandum, dated 16 December 2016, subject: Appeal Letter for SSG [Applicant]. It shows COL J.R. N____, Jr., U.S. Army (Retired), provided the following statement: From December 2012 to September 2013, I was the 3rd Infantry Division Sustainment Brigade Commander (Fort Stewart, Georgia) deployed and headquartered in Kandahar, Afghanistan for nine months. SSG [Applicant] (then a SGT) was a member of my command serving in the 541st Transportation Company stationed in Shindand, Afghanistan. Early in 2013, I received an appeal of an Article 15 given to SSG [Applicant] surrounding an incident where SSG [Applicant] allegedly struck another NCO during an argument. He was demoted to SPC and forfeited some portion of his pay. After reviewing the evidence at hand, I determined to over-turn the Article 15 (and all punishments) and grant SSG [Applicant] his appeal. The evidence presented to me clearly revealed SSG [Applicant] did not commit this misconduct, and he was wrongly accused of the incident. I then reinstated his rank to SGT and pay. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resources Records (AMHRR)) provides policies, operating tasks, and steps governing the AMHRR. Depending on the purpose, documents will be filed in the AMHRR in one (or more) of eleven (11) sections: performance, service, restricted, medical, flight, finance, State/Territory, deployment/ mobilization, administrative, personnel records review, and/or medical records review. Table B-1 (Authorized Documents) provides guidance for filing the DA Form 2627 in the OMPF. The DA Form 2627 will be filed in either the performance or restricted section of the OMPF, as directed by item 4b of the DA Form 2627. The allied documents will be filed in the restricted section of the OMPF. 2. Army Regulation 27-10 (Military Justice), chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial. Chapter 3, Section V (Suspension, Vacation, Mitigation, Remission, and Setting Aside), paragraph 3-28, shows that setting aside and restoration 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 UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. a. If all findings are set aside, then the UCMJ, 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 UCMJ, 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. b. The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed. When a commander sets aside any portion of the punishment, the commander will record the basis for this action on DA Form 2627–2. When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. DISCUSSION: 1. The applicant contends that the DA Form 2627, dated 16 March 2013, and allied documents that are filed in his OMPF should be removed because the DA Form 2627 was wholly set-aside. 2. By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal. a. The evidence of record is absent a copy of a DA Form 2627-2 pertaining to the DA Form 2627 that is under review. However, the evidence of record shows the NJP that is under review was wholly set-aside by the superior authority. Specifically, the superior authority provided a statement affirming that he wholly set aside the Article 15 and the punishment when he acted on the applicant's appeal. b. The evidence of record supports the fact that the NJP was set aside by the appeal authority in that there is no evidence of record that shows the punishment imposed by the Battalion Commander against the applicant (i.e., reduction to SPC/E-4) was duly executed subsequent to the appeal action. 3. In view of the facts of this case, it would be appropriate to correct the applicant's records by removing from the performance section of his OMPF the DA Form 2627, dated 16 March 2013, and all allied documents related to the DA Form 2627 that are filed in the restricted section of his OMPF, including copies of those documents that may be filed in other sections of his AMHRR and any other personnel records. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170005002 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170005002 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2