BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20180009090 APPLICANT REQUESTS: * removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 17 May 2005, from his Army Military Human Resource Record (AMHRR) * restoration of his previous rank/grade of staff sergeant/E-6 * removal of his relief-for-cause DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period May 2005 from his 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 * DA Forms 2166-8 covering the periods November 2004 through April 2005 and June 2005 through May 2006 * Memorandum, U.S. Army Human Resources Command, dated 25 August 2011, subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Meritorious Service Medal Certificate * Army Review Boards Agency Website Extract, Army Regulation 600-37 (Unfavorable Information), Chapter 7 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 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. a. Paragraph 3-3 (Relationship of Nonjudicial Punishment to Nonpunitive Measures) stated nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ. Included among nonpunitive measures is administrative reduction in grade. The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has "promotion authority" within the meaning of Article 15 if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade. b. Paragraph 3-18 (Notification and Explanation of Rights) stated punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense. c. 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 Official Military Personnel File for Soldiers in the ranks/grades of sergeant/E-5 and above. The decision to file the original DA Form 2627 in the performance folder or the restricted folder in the OMPF would be made by the imposing commander at the time punishment is imposed. 3. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed policies and procedures governing promotions and reductions of Army enlisted personnel. Paragraph 7-3 (Rules for Processing Reduction for Misconduct) stated for Article 15 of the UCMJ, see Army Regulation 27-10. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. Once properly filed in the AMHRR the document will not be removed from the record unless directed by Board of the Army Review Board Agency. The restricted folder contains documents that may normally be considered improper for viewing by selection boards or career managers. Appendix B (Documents Required for Filing in the AMHRR and/or interactive Personnel Records Management System (iPERMS)) states all documents required for filing in the AMHRR and/or iPERMS are required to be uploaded to iPERMS by the office responsible for completing the action. Documents will be uploaded within 20 working days of the document being produced and associated actions completed. 5. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies and tasks for the Army's Evaluation Reporting System. a. Paragraph 3-39 stated an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. b. Paragraph 6-7 stated an appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. c. Paragraph 6-11 stated the burden of proof in the appeal process rests with the appellant. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. d. Paragraph 6-13 advised that appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance. A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. 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 the penalty imposed under the UCMJ was excessive, without consideration of his performance preceding the event. 3. He provided his DA Form 2166-8 covering the period November 2004 through April 2005 while serving as a platoon sergeant in the rank/grade of staff sergeant/E-6. a. He was rated "SUCCESS" by his rater in all blocks in Part IV (Values/ NCO Responsibilities). b. He was rated and "FULLY CAPABLE" by his rater in Part Va (Overall Potential for Promotion and/or Positions of Greater Responsibility). c. He was rated "Successful/2" by his senior rater in Part Vc (Overall Performance) and "Superior/2" by his senior rater in Part Vd (Overall Potential for Promotion and/or Positions of Greater Responsibility). d. In Part Ve (Senior Rater Bullet Comments), his senior rater entered the following bullet comments: * promote with peers * demonstrates a strong desire to accomplish difficult missions * possesses the potential to excel 4. On 17 May 2005, he received nonjudicial punishment for physically controlling a passenger vehicle on or about 25 April 2005 at or near Heidelberg, Germany, while the alcohol concentration in his breath was 0.10 grams of alcohol per 210 liters of breath or greater as shown by chemical analysis in violation of Article 111, UCMJ. a. Having been afforded the opportunity to consult with counsel, the applicant elected not to demand trial by court-martial, elected a closed hearing, and elected a person to speak in his behalf. b. After consideration of all matters presented in defense, mitigation, and/or extenuation, the Commander, 37th Transportation Command, imposed the punishment of reduction to the rank/grade of sergeant/E-5, forfeiture of $1,225.00 pay per month for 2 months and extra duty for 45 days. c. The imposing authority directed filing the original DA Form 2627 in the performance folder of the applicant's OMPF. d. The applicant elected not to appeal. 5. A review of the applicant's AMHRR in iPERMS shows the relief-for-cause DA Form 2166-8 covering the period of May 2005 is filed in his performance folder. a. Part I(g) (Reason for Submission) shows "Relief for Cause." b. Part IIc (Authentication) shows the applicant was unavailable for signature. c. Part IV (Army Values/Attributes/Skills/Actions) shows the rater marked "NO" for "Duty" and "Integrity" and entered the following bullet comments: * received a DUI [driving under the influence] * command directed enrollment into ASAP [Army Substance Abuse Program] * unexcused absence from duty left his section uninformed of his mission requirements d. Part IV also shows his rater marked "Needs Improvement (Much)" for "Competence," "Leadership," and "Responsibility and Accountability" and entered the following bullet comments: * 60 percent of all assigned jobs were substandard IAW [in accordance with] the shop SOP [standing operating procedure] * actions did not project the use of sound judgement * overall work habits shown [sic] a lack of consistency * was not focused on mission success * perception of improper conduct adversely affected morale and discipline within the unit * set the wrong example for subordinates * the rated NCO has been notified of the reason for the relief * would not accept responsibility for his actions * was not truthful to self as well as others e. Part V (Overall Performance and Potential) shows his rater rated his overall potential for promotion and/or positions of greater responsibility as "MARGINAL." f. Part Ve (Senior Rater Bullet Comments) shows his senior rater entered the following bullet comments: * do not promote * Soldier received a DUI this rating period * Soldier lacked the mental toughness as an NCO h. Parts Vc (Overall Performance) and d (Overall Potential for Promotion and/or Positions of Greater Responsibility) show his senior rater rated his overall performance and overall potential for promotion and/or positions of greater responsibility as "Fair/4." 6. He provided his DA Form 2166-8 covering the period June 2005 through May 2006 while serving as a motor sergeant in the rank/grade of sergeant/E-5. a. Part Va (Overall Potential for Promotion and/or Positions of Greater Responsibility) shows his rater rated him as "FULLY CAPABLE." b. Part Ve (Senior Rater Bullet Comments) shows his senior rater entered the following bullet comments: * promote to Staff Sergeant * excellent NCO; technically proficient, demanding but fair with subordinates, and exceptionally loyal to the Army * will perform with superior proficiency in any position c. Parts Vc (Overall Performance) and d (Overall Potential for Promotion and/or Positions of Greater Responsibility) show his senior rater rated him as "Successful/2" for overall performance and as "Superior/2" for overall potential for promotion and/or positions of greater responsibility. 7. He was honorably discharged on 17 November 2010 in the rank/grade of sergeant/E-5 and transferred to the 2nd Battalion, 411th Regiment (Logistics Support), U.S. Army Reserve. He completed 14 years, 11 months, and 26 days of net active service during this period and 5 months and 25 days of prior active service. His DD Form 214 shows the narrative reason for separation as completion of required active service. 8. Headquarters, 88th Regional Support Command, Orders 12-121-00028, dated 30 April 2012, released him from his current assignment and reassigned him to the Retired Reserve effective 21 May 2012 by reason of completion of 20 or more years of qualifying service for retired pay at age 60. 9. On 11 June 2012, he was awarded the Meritorious Service Medal for exceptionally meritorious service in positions of increasing responsibility, culminating as a senior mechanic, from 22 May 2002 to 21 May 2012 (retirement award). 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, his record of service, the frequency and nature of his misconduct, the resultant NJP, reduction and NCOER entries, an honorable discharge, USAR service, retirement award and transfer to the Retired Reserve. The Board found insufficient evidence to mitigate the misconduct or show the NJP and the included punishment to be unjust, or that the entries in the RFC NCOER were untrue. Based on a preponderance of evidence, the Board determined that the applicant’s NJP, reduction in rank and RFC NCOER were 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009090 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1