BOARD DATE: 21 May 2020 DOCKET NUMBER: AR20180005051 APPLICANT REQUESTS: removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 4 February 2007, from the restricted folder of her Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DA Form 2627, dated 4 February 2007, with allied documents – * DA Form 4856 (Developmental Counseling Form), dated 18 December 2006 * DA Form 2823 (Sworn Statement), Sergeant (SGT) J____ L. T____, dated 2 January 2007 * DA Form 2823, Staff Sergeant (SSG) S____ R. B____, dated 2 January 2007 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 2 January 2007 * Enlisted Record Brief, dated 2 January 2007 * Request for Legal Action, 2nd Brigade Combat Team, 1st Infantry Division Law Center, dated 27 January 2007 * Memorandum for Record, U.S. Army Trial Defense Service, Camp Liberty Office, Iraq, dated 1 February 2007, subject: (Applicant) REFERENCES: 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), in effect at the time, established procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 stated investigating officers may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 4. Army Regulation 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice and implemented the Manual for Courts-Martial. Paragraph 3-37 (Distribution and Filing of DA Form 2627 and Allied Documents) stated the original DA Form 2627 will be filed in the Soldier's AMHRR. The decision to file the original DA Form 2627 in the performance folder or the restricted folder of the AMHRR will be made by the imposing commander at the time punishment is imposed. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the Army Board for Correction of Military Records or other authorized agency. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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 she was charged with violating Article 91 (Insubordinate Conduct toward Warrant Officer, Noncommissioned Officer, or Petty Officer) of the UCMJ. a. The memorandum from the Trial Defense Noncommissioned Officer in Charge states, "This encounter that they had was a divestiture, which is the removal of authority. The evidence has raised an issue as to whether SSG B____ conducted herself prior to the alleged offense in a manner which took away her status or authority as a noncommissioned officer whose own language and conduct under all the circumstances departs substantially from the required standards appropriate for that individual's rank and position under similar circumstances." b. Based on findings after an official Army Regulation 15-6 investigation, it was determined that the verbiage used during the filed action was unjust due to prior threats made by the noncommissioned officer to harm her while in execution of her office. 3. She was serving in the Regular Army in the rank/grade of SGT/E-5 at the time of the incidents. 4. The DA Form 4856, dated 16 December 2006, shows she was counseled by SSG B____ for violations of Article 91 (Insubordinate Conduct towards Warrant Officer, Noncommissioned Officer, or Petty Officer) and Article 92 (Failure to Obey Order or Regulation). Much of the form is illegible. She refused to sign the form. 5. The DA Form 2823 from SSG J____ L. T____, dated 2 January 2007, states she witnessed a verbal altercation between the applicant and SSG B____ involving a Christmas card. Much of the form is illegible. 6. The DA Form 2823 from SSG S____ R. B____, dated 2 January 2007, described an incident on 14 December 2006 relating to the applicant's handling of her personal mail and the verbal altercation that ensued. She also counseled the applicant on the number of rings she was wearing. 7. The Army Regulation 15-6 investigation was not in evidence for review. 8. On 4 February 2007, she received nonjudicial punishment for willfully disobeying a lawful order on or about 14 December 2006; for using disrespectful language toward a noncommissioned officer on or about 14 December 2006; and for treating with contempt and being disrespectful in deportation toward a noncommissioned officer on or about 15 December 2006. a. Her punishment consisted of forfeiture of $542.00 pay, suspended, and extra duty for 7 days. b. The issuing authority directed filing the DA Form 2627 and allied documents in the restricted folder of her AMHRR. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, her record of service, the statements in the record, the Trial Defense NCOIC’s memorandum, the non-judicial punishment proceedings and the absence of a AR 15-6 investigation or other evidence to support the statement that the applicant was threatened. Based on a preponderance of evidence, the Board determined that the applicant’s NJP and the current filing of the DA Form 2627 and allied document in her AMHRR was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): not applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005051 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1