ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20180005595 APPLICANT REQUESTS: permanent removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) and all allied documents from his Official Military Personnel File (OMPF). 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) with attached self-authored letter * DA Form 2627, dated 16 February 2008 * Memorandum, Headquarters and Headquarters Battery, 2nd Battalion, 15th Field Artillery Regiment, 2nd Brigade Combat Team, 10th Mountain Division (Light Infantry), Fort Drum, NY, dated 26 February 2018, subject: Letter of Recommendation for Removal of Article 15 Proceedings of (Applicant) FACTS: 1. The applicant states: a. The DA Form 2627, dated 16 February 2018, should have remained at the local level and not been filed anywhere in his official military records. The determination for local filing is discussed in the enclosed memorandum from now Lieutenant Colonel (LTC) J____ L. H____, dated 26 February 2018, who was then the company commander and who verified the DA Form 2627 was to be filed locally at the time. This is evident in LTC H____'s memorandum and in item 5 of the DA Form 2627, which shows he lined through both filing determinations, with no initials as required by Army Regulation 27-10 (Military Justice) in figure 3-1 and by the annotation of not applicable (N/A). b. The error in his records may have a negative impact on his future. He is an outstanding leader who made a mistake when he was a young enlisted Soldier and who has continued to excel. The DA Form 2627 could hinder his abilities to lead at higher levels. c. The following achievements occurred after receiving the DA Form 2627 on 16 February 2008: * promotion to staff sergeant/E-6 effective 1 December 2008, as evidenced in Orders 326-01, 2nd Brigade Combat Team, Human Resource Command Center, 82nd Airborne Division, dated 20 November 2008 * direct selection for Officer Candidate School, finishing in the top 10 percent of his class, effective 4 June 2009 * leading Soldiers honorably and with distinction * rated "Above Center of Mass" or "Most Qualified" * rated as the number 1 lieutenant in the battalion as a platoon leader and executive officer * rated as the number 1 captain working for the U.S. Army Central Engineers * rated as the number 1 company commander in the battalion 2. The applicant enlisted in the Regular Army on 20 April 2004. 3. On 16 February 2008 while serving in the rank/grade of sergeant/E-5, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for being disrespectful in language and deportment toward a senior noncommissioned officer. He did not demand trial by court-martial and he requested a closed hearing. The imposing commander, Major ____ L. H____, lined through item 5 indicating direction for filing the DA Form 2627 in the restricted fiche (folder) of the applicant's OMPF, did not initial, and entered "N/A" at the end of the line. 4. His was promoted to staff sergeant/E-6 effective 1 December 2008. 5. His noncommissioned officer evaluation report covering the period 2 June 2008 through 28 February 2009 shows he was rated "Among the Best" in Part V(a) (Overall Performance and Potential) and he was rated "Successful/1" and "Superior/1" by his senior rater in Part V(c) (Overall Performance) and Part V(d) (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility). 6. He was awarded the Army Commendation Medal on 1 April 2008 for serving as a cross functional team analyst in the 2nd Brigade Combat Team S-2 and for significantly contributing to the successful mission accomplishment of the 2nd Brigade Combat Team from 3 January 2007 through 31 March 2008. 7. He was honorably discharged on 3 June 2009 to accept a Regular Army commission. 8. He was appointed as a Regular Army commissioned officer on 4 June 2009 in the rank/grade of second lieutenant/O-1. 9. His officer evaluation report covering the period 17 December 2017 through 14 January 2019 shows he was rated "Most Qualified" in Part VIa (Potential Compared with Officers Senior Rated in Same Grade) by his senior rater. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board discussed the NJP, the statement of the company commander at the time, the applicant’s subsequent commissioning and the current placement of the Article 15 in his OMPF. The Board determined that there was no error, but that it would be unjust for the Article 15 to remain in the applicant’s record. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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 (Record of Proceedings under Article 15, UCMJ), dated 16 Feb 08 and all associated documents from 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice. Chapter 3 provides that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ. NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted. a. Paragraph 3-28 states "clear injustice" means 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. b. Paragraph 3-37a states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal. c. Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folder in the OMPF will be made by the imposing commander at the time NJP is imposed. The filing decision of the imposing commander is subject to review by superior authority. For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF. d. Paragraph 3-42 states that on approval of a change in status from enlisted to commissioned officer on or after 1 September 1979, DA Forms 2627 recording NJP received while in an enlisted status and filed in the OMPF will be transferred to the restricted folder of the OMPF. Copies of such records in the career management individual file and unit NJP or personnel files will be destroyed. 2. 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 provides that once properly filed 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. ABCMR Record of Proceedings (cont) AR20180005595 4 1