BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20180002761 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20180002761 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) dated 8 July 2010 from his official military personnel file (OMPF). 2. The applicant states: a. Army Regulation 27-10 (Military Justice) allows for the removal of an Article 15 from the OMPF when the document has served its intended purpose, the document has been in the OMPF for at least one year since its imposition, when the Soldier is at least a staff sergeant (SSG), when the Soldier has received at least one Noncommissioned Officer Evaluation Report (NCOER) since the filing of the Article 15, and when burden of proof is demonstrated that the removal of the Article 15 is in the best interest of the Army. b. As required above, the Article 15 has served its intended purpose because since its imposition, he continued to serve and excelled in many of his professional objectives and his continued service and progression has been demonstrated to be in the best interest of the Army. c. He asks the Board to note his following achievements since the imposition of the Article 15. (1) He is currently serving in a Team Sergeant position on a Special Forces Operations Detachment (SFOD), a position normally held by a master sergeant (MSG). In addition, his senior rater ranked him as the number one Team Sergeant in a population of six as a non-promotable sergeant first class (SFC). (2) He deployed to Afghanistan in support of Resolute Support Mission where his team received accolades for disrupting enemy operations on multiple occasions. (3) He graduated in the top 20 percent of the SF Sniper Course. (4) He deployed to El Salvador and led the training of El Salvadoran military and police forces on transitional organized crime detection and disruption. The training led to their nation's forces ability to decrease crime significantly. (5) He received multiple NCOERs demonstrating his potential for continued service and career progression. Rating officials witnessed his determination and desire to continue to lead and serve. d. He enclosed recommendations from his chain of command to remove the Article 15 from the performance folder of his OMPF, as well as other documents for the Board's consideration to support his petition. 3. The applicant provides: * DA Form 2627, dated 8 July 2010, hereafter referred to as the contested Article 15 * DA Forms 2166-8 (NCOER) covering the periods 2 June 2013 through 31 December 2015 * DA Form 2166-9-2 (NCOER (SSG – First Sergeant (1SG)/MSG), covering the period 1 January through 31 December 2016 * seven letters of support CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 13 January 2000. He progressed through the ranks and was promoted to SFC on 1 January 2008. 3. The applicant received the contested Article 15 for violating Article 92 of the UCMJ, specifically for failing to return to his residence or official duty location by curfew on or about 23 April 2010. The commander directed the form be filed in the performance folder of his OMPF. He waived his right to trial by court-martial and did not appeal the Article 15. 4. The contested Article 15 is currently filed in both the performance and restricted folders of the applicant's OMPF. The contested Article 15 was placed in the performance folder on 15 July 2010 and the restricted folder on 13 August 2010. 5. The applicant's record is void of evidence that shows indiscipline prior to receiving the contested Article 15. 6. The applicant provides: a. NCOERs covering the years 2013 through 2016, which show he received excellent performance and potential ratings. b. Letters of support from members of his NCO Support Channel and members of his chain of command; each fully support the removal of the contested Article 15 from his OMPF. In addition, the commander who imposed the contested Article 15 fully supports his request and believes the punishment has served its purpose. REFERENCES: 1. 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. a. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment (NJP) under the UCMJ. 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. b. Paragraph 3-28 describes the setting aside of punishment and restoration of any rights, privileges, or property affected by the portion of the punishment set aside are restored. (1) 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, UCMJ. In addition, the imposing commander or successor in command may set aside some or all the findings in a particular case. (2) The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15, UCMJ, or punishment has resulted in a clear injustice. (3) 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 a clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. (4) 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. (5) Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Paragraph 7-2 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. Normally, consideration of appeals is restricted to grades E6 and above, to officers, and to warrant officers. This does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders. Petition for transfer of Article 15s is governed by Army Regulation 27-10. b. Paragraph 7-2c(1) provides this provision is limited to records of NJP imposed under the provisions of Article 15, UCMJ, and applies only to members in grades E-6 and above, officers, and warrant officers. Records of NJP may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army. The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met. Claims that an Article 15 is untrue or unjust, in whole or in part, will not be considered under this paragraph. The authority to adjudicate such claims rests with the ABCMR after the applicant has exhausted other means for administrative remedy. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program. It 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. DISCUSSION: 1. The applicant requests the contested Article 15 be removed from his OMPF. 2. The contested Article 15 is a form of NJP. NJP is a form of military justice authorized by the UCMJ. NJP permits commanders to administratively discipline Soldiers without a court-martial. Its purpose is to discipline Soldiers for minor offenses, in essence, to correct substandard behavior. 3. The applicant received NJP (the contested Article 15) for failing to return to his residence or official duty location by curfew on or about 23 April 2010. Although there is no record of prior indiscipline within the applicant's record, it appears the imposing commander decided to proceed with NJP to correct, educate, and reform him in a manner that he could not accomplish with less stringent measures. 4. The imposing commander directed the form be filed in the performance folder of his OMPF. The governing regulation provides 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. 5. The governing regulation allows for the transfer of Article 15s within the OMPF when they have served their purpose. The applicant contends the contested Article 15 has served its purpose and should now be removed from the performance folder of his OMPF. He provides evidence and a self-authored statement that show he has performed exceptionally well in his duties as an NCO since the imposition of the contested Article 15. 6. The applicant had demonstrated professional success and received accolades, as documented on NCOERS and letters or support. The record shows no evidence of misconduct or substandard behavior after the incident in question. 7. While the governing regulation allows for the transfer of Article 15s within the OMPF when they have served their purpose, it does not allow for their complete removal from the OMPF. In cases where the Board has determined a preponderance of the evidence supports a recommendation to grant relief, the contested Article 15 has been transferred from the performance folder (most visible) to the restricted folder (least visible) of the OMPF. In this case, the contested Article 15 is located in both the performance and restricted folders of the applicant's OMPF. BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20180002761 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 removing the DA Form 2627 dated 8 July 2010 from the performance folder of his official military personnel file (OMPF). 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 DA Form 2627 dated 8 July 2010 from the restricted folder of his OMPF. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002761 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20180002761 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2