ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180006174 APPLICANT REQUESTS: removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 27 February 2006, from the restricted folder of her official military personnel folder (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) * DA Form 2627, dated 27 February 2006 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 considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice. a. Chapter 3 implemented and amplified Article 15, UCMJ, and Part V, Manual for Courts-Martial. The decision whether to file a record of nonjudicial punishment in the performance folder of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed. b. Paragraph 3-37a states for all other Soldiers, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 on the performance section or the restricted section in the OMPF will be made by the imposing commander at the time punishment is imposed. 4. Army Regulation 600-8-104 (Military Personnel Information/Management Records), in effect at the time, prescribed the policies and mandated operating tasks for the Military Personnel Information Management/Records Program of the Military Personnel System. a. Paragraph 2-4a(1) provided that once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from a folder or moved to another part of the folder unless directed by the ABCMR. b. Table 2-1 (Composition of the OMPF) shows a DA Form 2627 will be filed in the performance or restricted folder of the OMPF, as directed by the issuing commander. 5. Army Regulation 600-37 (Unfavorable Information), in effect at the time, set 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 Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 (Appeals and Petitions) provided the policies and procedures for appeals and petitions for removal of unfavorable information from official personnel files. Paragraph 7-2a (Appeals for Removal of OMPF Entries) contains guidance on removals of OMPF entries. 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 E-6 and above, to officers, and to warrant officers. Although any Soldier may appeal the inclusion of a document placed in his or her file under this regulation, the appeals of Soldiers in grades below E-6 will only be considered as an exception to policy. This does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 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 her imposing commander did not authorize this document to be filed in her OMPF; neither was it his intent for the DA Form 2627 to be filed in her restricted folder as a form of punishment. 3. She further states a written letter from the imposing commander was notarized and mailed to the Fort Jackson G-1 Office. A copy of this letter was not attached for review. 4. Her records show she was promoted to the rank/grade of sergeant/E-5 effective 1 December 2004. 5. The DA Form 2627, dated 27 February 2006, shows she accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for unlawfully striking Mrs. S____ in the face with her elbow, grabbing her hair, and rushing her with a stick on or about 29 November 2005 at or near Illesheim, Germany, in violation of Article 128, UCMJ. No punishment was imposed. The imposing commander directed filing of the DA Form 2627 in the restricted folder of the applicant's OMPF. She did not appeal. 6. A copy of the DA Form 2627 is filed in the restricted folder of her OMPF. 7. Her DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 December 2005 through 31 October 2006 shows in: * Part Va (Rater Overall Potential) – "Fully Capable" * Part Vc (Senior Rater – Overall Performance) – "Successful/2" * Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) – "Superior/1" * Part Ve (Senior Rater Bullet Comments) – in part, "amply qualified to assume leadership role in any funds, chapel or TRADOC assignment" 9. She was promoted to the rank/grade of staff sergeant (SSG)/E-6 effective 1 March 2013. 10. Her DA Forms 2166-8 (NCOER) covering the periods 1 May 2008 through 31 July 2015 consistently show in: * Part Va (Rater Overall Potential) – "Among the Best" * Part Vc (Senior Rater Overall Performance) – "Successful/1" * Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) – "Superior/1" 11. Her DA Form 2166-9-2 (NCOER (SSG-First Sergeant/Master Sergeant) covering the period 1 August 2015 through 31 July 2016 shows in: * Part IVi (Rater Overall Performance) – "Far Exceeded Standard" * Part Va (Senior Rater Overall Potential) – "Most Qualified" * Part Vb (Senior Rater Comments) – in part, "[Applicant] is among the top 5% of SSGs I have supervised in 22 years of service" 12. Her DA Form 2166-9-2 covering the period 1 August 2016 through 21 November 2016 shows in: * Part IVi (Rater Overall Performance) – "Far Exceeded Standard" * Part Va (Senior Rater Overall Potential) – "Highly Qualified" * Part Vb (Senior Rater Comments) – in part, "[Applicant's] potential is among the best and easily in the top 10%" 13. Her DA Form 2166-9-2 covering the period 22 November 2016 through 21 November 2017 shows in: * Part IVi (Rater Overall Performance) – "Far Exceeded Standard" * Part Va (Senior Rater Overall Potential) – "Most Qualified" * Part Vb (Senior Rater Comments) – in part, "[Applicant] is in the top 1% of NCOs in the Corps I served with in 27 years whose devotion to duty is second to none" 14. Her records contain the following awards: * Certificate of Achievement – Airborne Leader's Course, dated 23 March 2006 * Army Good Conduct Medal (AGCM) 2nd Award, period of service 27 July 2003- 26 July 2006 * Army Achievement Medal (AAM), dated 20 August 2008, period of award 1 August-5 September 2008 * AGCM 3rd Award, dated 11 August 2009, period of service 27 July 2006-26 July 2009 * Army Commendation Medal (ARCOM), dated 8 November 2011, period of award 10 January 2009-10 January 2012 * AGCM 4th Award, dated 22 February 2016, period of service 27 July 2006- 26 July 2009 (should read 27 July 2009-26 July 2012) * Certificate of Achievement – Prayer Breakfast, awarded 11 September 2012 * AAM, dated 2 November 2012, period of award 1-24 October 2012 * Certificate of Achievement – Advanced Leader Course, dated 4 March 2013 * Meritorious Service Medal, dated 15 July 2005, period of award 9 December 2011-30 July 2015 * AGCM 5th Award, dated 4 February 2016, period of service 27 July 2013-26 July 2015 (should read 27 July 2012-26 July 2015) * Certificate of Achievement – City of Leesville Underpass Project, undated * AGCM 6th Award, dated 26 July 2018, period of service 27 July 2015-26 July 2018 * ARCOM, dated 1 April 2019 15. She is currently serving in the Regular Army in the rank/grade of SSG/E-6 as a chaplain assistant. 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 to include recent evaluations and her promotions, the frequency and nature of the misconduct, the NJP proceedings and the filing determination of the imposing commander. The Board considered the additional evidence (awards and Certificates) in the applicant’s records. The Board did not find the written letter from the imposing commander referred to by the applicant. The Board found insufficient evidence of mitigation for the offense and the applicant provided no additional comment regarding the offense. Based on a preponderance of evidence, the Board determined that the DA Form 2627, as currently filed in the restricted folder of her OMPF, is 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 :XXX :XX :XXX 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180006174 6 1