ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20170007284 APPLICANT REQUESTS: * removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 17 June 2015 from his military record * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to sergeant (SGT)/E5 * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Statement from former First Sergeant (1SG), dated 23 February 2017 * Electronic Military Personnel Office – Rank History Listing, dated 5 May 2016 * Email Correspondence – U.S. Army Trial Defense Service, October 2015 * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 17 June 2015 * Enlisted Record Brief (ERB), dated 1 May 2015 * Promotion Orders Number 089-03, dated 24 March 2015 * Criminal Investigation Division (CID) Report, dated 12 February 2015 * Leave and Earning Statements (4) * Letters of Support (6) * Certificate - American Language Course (2), dated 31 March 2011 * Certificate - Combat Lifesaver Course, dated 2 March 2011 * Diploma – U.S. Army Financial Management School, dated 25 August 2011 * Certificate of Affiliation – U.S. Army Financial Corps, dated 25 August 2011 * Certificate of Achievement – Provost Marshals Office, dated 15 September 2012 * Certificate of Achievement – Flag Football Team, dated 5 December 2012 * Citation – Army Good Conduct Medal, date 1 March 2014 * Certificate of Achievement – Disaster Training Exercise, dated 2 May 2014 * Citation - Army Achievement Medal, dated 25 January 2014 * Citation – Army Achievement Medal, dated 22 August 2014 * Certificate – Warrior Leader Course, dated 6 February 2015 * Certificate – Chemical, Biological, Radiological, Nuclear Defense, dated 25 November 2015 * Certificate of Achievement – Army Physical Fitness Test (AFPT) (3) * Certificate of Training – Modern Army Combatives Program (2) * DA Form 638 (Recommendation for Award) (2) * DA Form 1059 (Service School Academic Evaluation Report), dated 6 February 2015 * Letter of Commendation – Academic Excellence, dated 6 February 2015 * Military Personnel Message Number 14-070, issued 11 March 2011. * Army Directive 2014-03 (Retention Control Points), dated 28 January 2014. 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 (ABCMR) 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 the Article 15 he received on 17 June 2015 should be removed from his military record and his rank corrected on his DD Form 214 to reflect SGT/E5. He believes he was unlawfully punished and demoted from the rank and grade of SGT/E5 to private first class (PFC)/E3. He explains that due to this injustice, he was unable able to reenlistment and forced to separate from the military. 3. The applicant provides the above referenced documents to include: a. A self-authored statement in which he explains he was found guilty of violating a lawful order for wrongfully transferring duty-free goods to an unauthorized person in violation of the U.S. Forces Korea Regulation. While he did attempt to sell his television via Craigslist, he never intended to sell it to an unauthorized person and ultimately did not sell the television. (1) He states Soldiers were allowed to post items for sale on the board in at the food court and USFK regulation does not restrict Soldiers from selling items on Craigslist. He adds that he is of Korean descent and speaks the language fluently and never posted the ad in Korean and made no effort to attract Korean nationals to his post. He never sold or transferred the television. He understands that attempt to commit a crime is still punishable, but not what he was charged for and also not fitting because he did not carry out an unauthorized sale. (2) Furthermore, he received unjust punishment when demoted from SGT/E5 to PFC/E3. He states, according to Article 15 of the UCMJ, “enlisted members in pay grades above E4 may not be reduced more than one grade.” Due to an administrative error on the DA Form 2627, his commander was under the belief he grade was E-4 at the time of nonjudicial punishment. He intended to appeal the Article 15, however, his 1SG informed him that it would take a while, subsequently, he did not appeal the decision. He made several attempts to speak to his Command, Inspector General, and Legal Assistance in regards to the retention error, however, he was unsuccessful. He believes it is sincerely unjust that the end result was expulsion from an otherwise unblemished military career. b. A statement from his former 1SG, G_M_, which states it was not his intent or the intent of the company commander to separate the applicant from the service. He considered [Applicant] a solid Soldier with no disciplinary issues. He recalls the applicant was required to meet a specific window to get his rank back and potentially be eligible for reenlistment. He states he explained the potential negative impacts of an appeal in this case to the [Applicant]. He admits due to the geographic distribution of the command, matters requiring Brigade Commander’s attention would be delayed. Unfortunately, the applicant was later informed by the retention NCO that he was ineligible for reenlistment as a result of rank reduction. c. Electronic Military Personnel Office – Rank History Listing, which reflects on 1 April 2015, he was promoted to SGT and on 16 June 2017, he was reduced to PFC. d. DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 17 June 2015, which shows on 4 February 2015, he was punished for violating a lawful general regulation to wit: United States Forces Korea Regulation 60-1, Chapter 6, date 3 August 2013, by wrongfully transferring duty-free goods to an authorized personnel. This is in violation of Article 92, UCMJ. He received a reduction to PFC and forfeiture of pay for $1,027. In item 5 (initial appropriate block, date, and sign), he initialed in the block, “I do not appeal” on 17 June 2015. e. Email correspondence between [Applicant] and B_O_, the Defense Counsel at U.S. Army Trial Defense Service, in which the applicant requested advice on submitting an appeal. B_O_ advised the applicant and when the applicant asked for additional assistance, B_O_ informed the member “that is all the guidance I will provide you with respect to your Article 15 appeal. Do not come back here seeking advice on the issue.” f. ERB which shows his rank and date of rank as SGT effective 1 April 2015. g. Promotion Orders Number 089-03, dated 24 March 2015, from 501st Sustainment Brigade which states the applicant is promoted from Specialist (SPC)/E4 to SGT/E5 with the effective date of 1 April 2015. h. CID Report stating the applicant was suspected of black marketing and larceny of government funds. i. A letter of support from M_L_, an enlisted NCO, dated 16 June 2015, which states the applicant was a model Soldier. He explains [Applicant] excelled in Army Physical Fitness and as a leader, he motivated his fellow squad members to take college and correspondence courses. j. A letter of support from A_M_, the applicant’s former enlisted supervisor, which states the applicant’s character and work ethic were an asset to both his unit and the Army. He showed a high level of enthusiasm and motivation at PT, made the Commandant’s list in school and remained dedicated to his duties. k. A letter of support from his former supervisor, which states the applicant was a reliable and professional Soldier who had a future in the Army. l. A letter of support from a fellow NCO, which states as a member of the military pay clerk section, the applicant ensured the efficiency, accuracy, and timelines of financial documents for over 500 high visibility personnel and their families. He completed combative level 1 and 2 and Warrior Leadership Course and held the highest accuracy in peninsula. He loved military life and wanted to submit a packet to green to gold to continue serving in the Army. m. A letter of support from the Combative NCOIC, which states while attending training, he displayed a high degree of motivation, teamwork and resilience. Also, his classmates voted him as the honor graduate. n. A letter of support from A_A_, a peer, which states while at advanced individual training, the applicant consistently reached out to fellow classmates to assist with assignments and physical fitness. He achieved a 300 of his AFPT which set an example for his peers to follow. He was an outstanding Soldier and a great asset for any unit. 4. A review of the applicant’s service record shows: a. He enlisted the Regular Army on 29 January 2010 in the rank and grade of private (PV2)/E2. b. He had continuous honorable service from 2 March 2011 to 2 April 2014 and 3 April 2014 to 30 December 2016. c. His record is void of promotion or reduction/demotion orders. However, DA Form 4187 (Personnel Action), dated 24 October 2016, shows he was promoted from PFC to SPC on 1 November 2016. d. Other than the documentation provided by the applicant, his record is void of DD Form 2627, Article 15, UCMJ actions. e. According to the DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), on 12 October 2016, a PEB convened and found the Soldier was physically unfit due to major depressive disorder and recommended placement on Temporary Disability Retirement List (TDRL) with reexamination in July 2017. Additionally, the PEB found the onset and/or occurrence of the unfitting condition was not deemed to have been in a combat zone or during the performance of duty in combat-related operations. f. On 13 October 2016, the applicant signed and dated the DA Form 199 concurring with the PEB findings. g. On 30 December 2016, the applicant was placed on the TDRL. His DD Form 214 shows his characterization of service as honorable and the narrative reason as Disability, Temporary (Enhanced). He completed 5 years, 9 months and 29 days of active service. It also shows he was awarded or authorized: * Army Achievement Medal (4th Award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Non-Commissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Ribbon h. His ERB dated 3 January 2017 lists in Section II, Service Data, rank and date of rank as: * PV2: 24 February 2012 * PFC: 17 June 2015 * SPC: 1 April 2016 5. On 14 March 2019, he was removed from TDRL because of permanent physical disability and permanently retire in his current grade of rank of SPC/E4. 6. By regulation, a. Army Regulation (AR) 600-8-104 (Army Military Human Resources Record (AMHRR)), the guidelines for filing an Article 15 are found in AR 27-10. b. AR 27-10 (Military Justice), a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s official military personnel file (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. c. Army Regulation 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. 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. 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 Army Regulation 600- 8-104. The guidelines for filing an Article 15 are found in Army Regulation 27-10. 7. By regulation, 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also found relief was not warranted. In the Board’s view, it would not be appropriate to question the commander’s decision to find him guilty. He was under investigation since Feb 15 as an E4, promotion orders were cut to SGT in Mar 15; however, he was flagged so the promotion was not valid. He received an ART 15 in Jun 15 while still an SPC and was justly reduced to PFC. Based upon the documentary evidence and the facts reflected above the Board concluded there was no evidence of an error or injustice which would warrant making a change the applicant’s military service record. 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. 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), a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s official military personnel file (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. a. Soldiers in the ranks of sergeant (SGT)/E5 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 (Record of Proceedings Under Article 15, UCMJ) 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. Table 3-1 (Maximum Punishments for Enlisted Members and Commissioned Officers) states the maximum punishment for E5 through E6 imposed by field grade and general officers is one grade in peace time. c. Paragraph 3-16 states the decision to appeal will be recorded in block 4, DA Form 2627-1. The Soldier will be given a reasonable time (normally no more than 5 calendar days) within which to submit an appeal. The Soldier may, pending submission and decision on the appeal, be required to undergo the punishment imposed, but once submitted, such appeal will be promptly decided. d. Paragraph 3-19 describes when a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade reduced is the date the punishment of reduction was imposed. e. 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. f. Paragraph 3-37b 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 (Record of Proceedings under Article 15, UCMJ) 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. g. 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. 3. Army Regulation 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. 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. Table B-1 provides instructions regarding the filing of documents in the OMPF. The Army Personnel Records Division 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 Army Regulation 600-8-104. The guidelines for filing an Article 15 are found in Army Regulation 27-10. 4. Army Regulation 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170007284 6 1