ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20170018277 APPLICANT REQUESTS: * removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 9 August 2012, from his Official Military Personnel File (OMPF) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER) * email correspondence * Final Judgement of Change of Name and two associated Social Security Number (SSN) cards 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 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: a. He was made to parade around as a Specialist (SPC) for the remainder of his Afghanistan tour; however, it was unjust because he was the butt end of a joke and subjected to an elaborate horse and pony show. While sporting a SPC rank on his chest, he was continued to be paid as a sergeant (SGT)/E-5. When his unit returned to Fort Hood, TX, for demobilization, his DD Form 214 (Certificate of Release or Discharge from Active Duty) still showed his pay grade as E-5. When his unit was about to board a plane heading to Clearwater, FL from Fort Hood, he and his PSG were able to have the First Sergeant switch his [applicant] back to his SGT chevron uniform patch. His 2013 DA Form 2166-8 does not show he had time lost as an NCO. When he transitioned back to his unit in Tampa in March 2013, it showed he was still an E-5. In a. other words, there is nothing reflecting the legitimacy of this Article 15 within his service records, financial or otherwise. b. This black mark against him, along with the fact that he was denied his exit DD Form 214, has made securing a civilian job very hard. He wants to receive an appointment as a Reserve commissioned officer. He is currently attempting to undertake enrolling in the St. Petersburg Reserve Officers Training Corps. 3. The applicant provides copies of the following: a. A DA Form 2166-8, for the period from 26 January 2012 to 25 January 2013, showing he received ratings of “Successful,” “Fully Capable,” and “Superior.” The evaluation shows his rank as SGT and makes no mention of any Article 15 implementation during his period of service in Afghanistan in support of Operation Enduring Freedom (OEF). b. Email correspondence, dated 18 June 2015, wherein he was advised that no DD Form 214 for the time he served in the U.S. Army Reserve (USAR) would be issued, his orders would serve as his DD Form 214 from the USAR, and a DD Form 214 would only be issued when a Soldier was released from active duty. c. A Final Judgement of Change of Name, dated 31 July 2017, showing his last name was changed. His also provides two SSN cards with both last names. 4. Review of the applicant’s military record shows: a. He enlisted in the Regular Army on 6 June 2006. He was promoted to the rank/pay grade of SGT/E-5 on 1 July 2009. He was honorably released from active duty on 18 January 2010 and was transferred to a Reserve unit. His DD Form 214 shows he completed 3 years, 7 months, and 13 days of active service. b. He was ordered to active duty in support of OEF and entered on 13 October 2011. He served in Afghanistan from 10 December 2011 to 10 October 2012. c. On 12 June 2012, he received counseling on the proper way for voicing a complaint and the proper channel to route the complaint. d. On 27 July 2012, flagging action was initiated against him for adverse action. e. On 3 August 2012, he accepted an Article 15 for behaving disrespectfully toward his superior commissioned officer. His punishment consisted of a reduction to pay grade E-4 and a written reprimand. He did not appeal. a. f. On 9 August 2012, the imposing authority found the applicant guilty of all specifications and directed filing of the Article 15 in the restricted section of the applicant’s OMPF. g. He was honorably released from active duty on 13 December 2013 and was transferred to a Reserve unit. His DD Form 214 shows he completed 1 year, 2 months, and 11 days of active service. This form also shows in: * Item 4a (Date, Rate, and Rank) – SGT (should be SPC) * Item 4b – (Pay Grade) – E-5 (should be E-4) * tem 12f (Effective Date of Pay Grade) – 1 July 2009 5. By regulations (AR 27-10): a. a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander. When a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced it the date the punishment of reduction was imposed. The Soldier is a defense attorney, given the right to demand trial by court-martial, and afforded the opportunity to appeal the Article 15 through the proper channels. b. The Board does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ; this is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. 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. 6. By regulation (AR 600-8-104), once placed in the OMPF, an evaluation report and/or Article 15, becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 7. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that they could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined relief was not warranted. The Board found that the applicant was deployed to Iraq and to Afghanistan, he earned two commendation medals, and he earned two Good Conduct Medals. He has an Honorable Discharge, his DD Form 214 reflects SGT/E-5, which is an error based upon the Article 15 punishment showing he applicant was reduced to Specialist/E4 and which the Board recommended by corrected. The Article 15 received was filed in the restricted section of his OMPF. Nevertheless, the Board concluded the applicant failed to provide sufficient justification for the Article 15 removed from his restricted fiche. The Board believed the Article 15 is properly filed, in accordance with governing regulation. 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: 1. 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. 2. Prior to closing the case, the Board did note the administrative notes below from the analyst of record and recommended those changes be made to more accurately reflect his military service. 1. X 10/3/2019 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s records shows his DD Form 214 contained administrative entries. As a result, amend the DD Form 214 as follows: * Block 4a, delete SGT and add SPC * Block 4b, delete E-5 and add E-4 * Block 12f, delete 12 July 2009 and add 9 August 2012 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), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice. The regulation stated in: a. Paragraph 3-6 (Filing Determination) – 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) was as important as the decision on whether to impose NJP itself. In making a filing determination, the imposing commander must a. 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 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) – guidance for transfer or removal of records of NJP from the OMPF. Applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the ABCMR. 3. AR 600-8-104 (Military Personnel Information Management/ Records), in effect at the time, provided the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF. a. Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Documents authorized for filing in the OMPF were kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF. It also served to protect the interests of the Soldier and the Army. Once placed in the OMPF, the document became a permanent part of that file. The document would not be removed from or moved to another part of the OMPF unless directed by the ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the OMPF and/or Interactive Personnel Electronic Records Management System) showed a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander. 4. AR 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. a. 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.