ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20180001134 APPLICANT REQUESTS: removal from her official military personnel file (OMPF), the DA Form 2627 (Record of proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 September 1993. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) * Memorandum, for the Department of the Army Suitability Evaluation Board, subject: Removal/Transfer of Old Article 15 from Performance Fiche to Restricted Fiche * Department of the Army Suitability Evaluation Board (DASEB) – Record of Proceedings * Memorandum, Subject: Resolution of Unfavorable Information for [Applicant] * Army Review Board Agency (ARBA) Letter to [Applicant] 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 the Article 15 should be removed from her records because it was appealed and placed in her performance fiche and then in her restrictive fiche. She believes she has been a stellar Soldier and a great asset to the Army. However, having the Article 15 in her record as caused her to be passed over for many promotions. It’s an injustice and requests to have it removed from her records. In the future, she has aspirations on becoming a Sergeant Major and continue to lead Soldiers but believes the Article 15 could be detrimental to her future career. 3. The applicant provides: a. Memorandum for the Department of the Army Suitability Evaluation Board, subject: Removal/Transfer of Old Article 15 from Performance Fiche to Restricted Fiche, dated 11 September 2010, in which the applicant requested removal of the Article 15 because she believed it served its’ purpose and it has remained on her record for over 17 years. b. DASEB – Record of Proceedings, dated 30 November 2010, which determined the evidence submitted and found it was sufficient to warrant the relief requested to transfer the Article 15 to the applicant’s restricted portion of her Official Military Personnel File (OMPF). c. Memorandum for the U.S. Army Human Resources Command, subject: Resolution of Unfavorable Information, dated 1 December 2010, which states that after careful consideration, the DASEB voted to approve the transfer of the Article 15, and all related documents, in that it has served the intended purpose and it would be in the best interest of the Army. d. Letter from ARBA, dated 1 December 2010, to the applicant which states DASEB has granted full relief of the applicant’s request to transfer the Article 15 to the restricted file. 4. A review of the applicant’s service records shows: a. She enlisted in the U.S. Army Reserve (USAR) on 2 March 1982. b. She entered active duty for training on 26 April 1982 and was honorably released on 20 October 1982, back to her USAR unit after completion of training. c. She progressed through the ranks and on 1 April 1990, she was promoted to the grade of Staff Sergeant/E6. d. On 20 September 1993, she accepted nonjudicial punishment, Article 15, for under false pretense, applying for a Deferred Payment Plan (DPP) account from the Army and Air Force Exchange Service (AAFES), by using a fictitious social security number in the AAFES Credit Program Application. The applicant was reduced to Sergeant/E5, forfeiture of $539 per month for 2 months and 30 days extra duty. e. She entered active duty and had continuous honorable service from 23 April 1985 to 26 April 1995. f. She was honorably discharged on 26 November 1995. g. On 30 November 2001, she enlisted in the Mississippi Army National Guard (MSARNG). h. She was promoted to the grade of Sergeant First Class (SFC)/E7 on 13 February 2004. i. On 18 April 2008, she entered active duty and was honorably released on 20 May 2009, after completion of required active service and returned to the MSARNG. j. On 20 May 2009, she enlisted in the Regular Army for 3 years in the grade of SFC/E7. k. The Article 15 is currently filed in the restricted section of the applicant’s OMPF. 5. On 11 September 2010, the applicant petitioned the DASEB to transfer the Article 15 to the restricted portion of her OMPF. On 30 November 2010, the DASEB voted to transfer the Article 15 stating that it served its intended purpose and that it was in the best interest of the Army to transfer the Article 15 to the restricted file. 6. By regulation, a. 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 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. 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 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. d. Applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR. There must be 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the misconduct and the relief already provided by the DASEB, the Board concluded there was insufficient evidence of an error or injustice which would warrant any further relief to the applicant. 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 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 the use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. 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 court-martial 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 minor offense includes misconduct not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial. It does not include misconduct of the type that, if tried by a general court-martial, could be punished by a dishonorable discharge or confinement of more than one year. a. Paragraph 3-6 addresses the filing of an NJP and provides, in pertinent part, that a commander’s decision whether to file a record of NJP in the performance section or restricted fiche 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. 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. b. 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. c. 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. d. 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 and/or iPERMS. 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. ABCMR Record of Proceedings (cont) AR20180001134 5 1