ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  17 September 2019

	DOCKET NUMBER:  AR20180000730


APPLICANT REQUESTS:  removal of DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from her official military personnel file (OMPF).  She also requests 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 2627
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  She has given 6 years of dedicated and honorable service with the Pennsylvania Army National Guard (PAARNG) which ended on 4 May 2010.  She reviewed her OMPF and was concerned when she noticed the “negative counseling” she received 12 years ago was included in her record.  She believes that including that document and not including the dozens of positive counselings depicts a negative picture of her character of service.  

	b.  The Article 15 resulted in a reduction in rank and the punishment was for a minor offense early in her military career.  The incident did not impact her military career and she went to be promoted, served in Iraq, and received numerous awards, citations, and positive counseling statements.  Among the awards, she received the Army Commendation Medal and the Army Achievement Medal.  

	c.  Positive counselings were not included and she stated it was disingenuous to degrade the character of her service by including the derogatory form and related documentation.  She has since reenlisted in the ARNG and she requests that the information be removed, in effect, set aside, so that the character of her service be accurately reflected in her OMPF.

3.  The applicant provides the DA Form 2627 and her most recent DD Form 214.

4.  A review of the applicant’s service record shows:

a. She enlisted in the PAARNG on 5 May 2004.

   b.  Orders 4126020, dated 5 May 2004, directed the applicant to initial active duty for training (IADT) at Goodfellow Air Force Base with an 8 October 2004 report date.

	c.  On 23 March 2005, she received nonjudicial punishment for disobeying a lawful command from a superior officer to not consume, possess, or purchase alcohol and she willfully disobeyed the same.  Her punishment included reduction to private/E-2.  As she held the rank of E-3, her commander lined through, as not applicable, the filing instructions for this Article 15.

	d.  On 31 May 2005, she was honorably released from active duty.  Her DD Form 214 shows she completed 7 months and 24 days of active service.  It also shows she was awarded or authorized:

* Global War on Terrorism Service Medal
* National Defense Service Medal
* Army Service Ribbon

   e.  She returned to active duty to in support of Operation Iraqi Freedom.  She was honorably released from active duty on 5 October 2009.  Her DD Form 214 shows she completed 10 months and 5 days of active service with 7 months and 24 days of prior active service.  It also shows she was awarded or authorized (in addition to prior awards listed):
   
* Army Commendation Medal
* Army Achievement Medal
* Army Reserve Components Achievement Medal
* Iraq Campaign Medal with Campaign Star
* Armed Forces Reserve Medal with M Device

5.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  

6.  By regulation (AR 27-10), the term set aside 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.  Nonjudicial punishment 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, Art. 15.

7.  By regulation (AR 600-8-104), once properly filed in the Army Military Human Resource Records Management, documents will not be removed from the record unless directed.  An Article 15 is filed in the performance section of the OMPF, unless otherwise directed by the imposing commander/officer. 

8.  A commander’s decision on whether to file a record of NJP in the performance folder of a Soldier’s OMPF is as important as the decision on whether to impose NJP itself.  In making a filing determination for a record of NJP which does not include a finding of guilty to a sex-related offense, 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 folder (see subparagraph c, below).  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, evidence of serious character deficiency, or a substantial breach of military discipline.  In such cases, the record should be filed in the performance folder.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined partial relief was warranted.  The Board members reviewed and chronicled the applicant’s service, deployment, and service medals.  The Board did not see anything improperly done during the processing of the applicant’s Article 15; the applicant was not denied any due process rights and it was properly filed.  

However, the applicant did come back and completed good service following the Article 15.  Therefore, as a matter of equity, the Board voted provide some clemency by transferring the applicant’s Article 15 to the restricted portion of her OMPF. 


BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

BS:	CMM:	JK:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the Article 15, dated 23 March 2005 to the restricted section of her official military personnel file.  

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the contested Article 15, dated 23 March 2005, from her official records. 

	 
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) 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.

3.  Army Regulation 27-10 (Military Justice), in effect at the time, prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM) and the rules for courts-martial contained in the MCM.  

	a.  Paragraph 3-28 (Setting Aside and Restoration), states 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.  Nonjudicial punishment (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.  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.  Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

	b.  Paragraph 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) states enlisted Soldiers (SGT and above) and commissioned officers may request the transfer of a record of nonjudicial punishment from the performance section of their OMPF to the restricted section under the provisions of this regulation.  To support the request, the person must submit substantive evidence that the intended purpose of UCMJ, Article 15 has been served and that transfer of the record is in the best interest of the Army.  Requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted.

4.  Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)), currently in effect, outlines responsibilities for the archiving and storage of data, information, and documents required for filing in the AMHRR.  Once properly filed in the AMHRR, the document will not be removed from the record unless directed by one of the following: 

	a.  Boards of the Army Review Boards Agency such as the Army Board for Correction of Military Records (ABCMR), Army Discharge Review Board, Department of the Army Suitability Evaluation Board, Army Special Review Board, and the DOD Physical Disability Review Board. 

	b.  The U.S. Army Physical Disability Agency for physical evaluation board documents only.

	c.  The Chief, Appeals and Corrections Section of the Evaluations, Selections, and Promotions Division.

	d.  The ORC for administrative purposes; this includes, but is not limited to deleting or moving mistakenly filed documents from the performance or service folder to the restricted folder and vice versa.


ABCMR Record of Proceedings (cont)	 AR20180000730


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