ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 October 2019 DOCKET NUMBER: AR20170008921 APPLICANT REQUESTS: removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from his Official Military Personnel File (OMPF). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Character Witness Statement • DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) • DA Form 4856 (Developmental Counseling Form) • DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG) ) • DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) • DD Form 214 (Certificate of Release or Discharge from Active Duty) • Enlisted Record Brief • Letter from Army Review Board Agency 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 in 2012, he received a Company Grade Article 15 for an infraction he committed. The Company Commander held all punishments in suspension given his past performance, yet the Article 15 was filed in his OMPF. Since this one incident, he has worked tirelessly to epitomize what a Noncommissioned Officer should be. He has held various assignments, to include a Forward Support Company Platoon Sergeant and Driver for a Two Star General Officer. In each assignment, he has met and exceeded all expectations. Recently he submitted an application to further develop himself by becoming a Mobility Warrant Officer only to be rejected due to this Article 15 being in his OMPF. He received the corrective action for the Article 15 he received, but is now being restricted as to what options he has to further develop himself in the United States Army. He request this infraction be removed from his OMPF in order to allow him to continue to serve in a greater capacity. 3. His service record shows: a. He enlisted in the Regular Army on 30 October 2001. b. 17 December 2012 his commander notified him that he was considering whether he should be punished under Article 15, Uniform Code of Military Justice (UCMJ) for violating the UCMJ for negligence discharge a firearm in the motor pool briefing room c. Having been afforded the opportunity to consult with counsel and understanding his rights, the applicant decided to decline trial by a court-martial and opted for a closed hearing. He further requested a person to speak on his behalf. d. 12 December 2012 - the imposing officer found him guilty of violating Article 134, UCMJ for negligence discharge a firearm in the motor pool briefing room • His punishment consisted of a forfeiture of $673 pay for one month pay (suspended for 120 days), extra duty for 14 days, and restriction for 14 days and oral reprimand. • The imposing commander directed filing the DA Form 2627 in the restricted section of his OMPF, as indicated in item 4b (filing decision). e. 20 December 2012 - he was advised of his right to appeal to the next higher authority. He declined to appeal. 4. The applicant provided: a. A character statement written by Major General .____ ____ _____. The applicant is serving as his driver. He goes on to say how highly dependable and diligent of a driver the applicant is. He states the applicant is a hard worker, role model and mentor for junior drivers. He also states “He is convinced that the applicant understands the gravity of his mistake and that he makes every effort to alert others to not repeat the same mistake. He is a consummate professional with a strong sense of duty and can be relied on to always do the right thing. This act of reckless behavior in 2012 is not representative of the applicant. He has a lot to offer the Army particularly in leading others and extracting the best from them. This incident should no longer impede future promotion or the devolution of additional responsibility to the applicant.” b. DA Form 2627, dated 20 December 2012. c. DA Forms 4856 dated 11 December 2012, 17 December 2012. d. DA Form 4856, signed by the First Sergeant recommending to company commander that the applicants suspension be remitted due to the applicants performance and his positive attitude. e. DA Form 268, initiating a flag effective 17 December 2012, signed 21 February 2013. f. DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 June 2019. Honorable character of service with a narrative reason of “Accept Commission or Warrant in the Army”. g. Enlisted Record Brief dated 19 June 2019. 5. By regulation 600-37 (Unfavorable Information) provides that 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. The applicant’s contentions and letter of support was carefully considered. 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. Regulatory guidance also states that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority, such as this Board. The Board agreed the Article 15 has served its purpose and should be removed from his 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 20 December 2012, from his official military personnel file. 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 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 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 non-punitive 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 non-punitive measures are considered inadequate or inappropriate. Prompt action is essential for NJP to have the proper corrective effect. 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 courtmartial 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 3-28 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 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. b. Paragraph 3-37c(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the AMHRR. The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR 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. c. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR. It states that applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further indicates there must sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008921 ABCMR Record of Proceedings (cont) AR20170008921 1 3 1