IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20180014427 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: a. Removing the DA Form 2627 dated 1 March 2017 from his OMPF and; b. amending the NCOER with the thru date of 20170127 to show in Part IV c. that he MET STANDARD and removing the comment “admitted to bringing home PVS-14 which violates DOD and CAMREGS”. CHAIRPERSON 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. IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20180014427 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20180014427 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests removal from his restricted folder of his Official Military Personnel File (OMPF) of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 1 March 2017 and, in effect, modification or removal of the Noncommissioned Officer Evaluation Report (NCOER) for the rating period 10 August 2016 through 27 January 2017. 2. The applicant states: a. With respect to the Article 15 proceeding, the misapplication of the definition of dereliction of duty does not describe/explain legally what actually happened. Irrelevant person(s)/witnesses were questioned during the investigation process prior to the imposing of the field grade action taken upon him. He was not afforded sufficient time during the Article 15 proceedings to obtain legal representation in order to defend his case. b. The rater's bullet explained in the Part IV (Performance Evaluation, Professionalism, Attributes, and Competences) portion of his Noncommissioned Officer Evaluation Report (NCOER), for the rating period 10 August 2016 through 27 January 2017, stating he admitted to taking home night vision goggles (PVS- 14 NVGs) is a false statement, neither formally via a DA Form 2062 (Hand Receipt/Annex Number) nor informally has he ever prepared/received a statement to that affect. The rater had newly arrived to their section less than 60 days to interact. c. Time is of the essence in reaching a decision on this application as the applicant has been selected for denial of continued service and will be discharged if the Article 15 is not removed from his OMPF prior to 1 January 2019. d. He has attached as support for his application a copy of the appeal that was filed by counsel on his behalf in the QMP proceedings. In that appeal, counsel argued that the applicant should be retained in the Army. COUNSEL'S REQUEST AND STATEMENT: Counsel states: a. This appeal is submitted in response to the notification that the applicant has been denied continued service under the QMP and is presented on the basis of material error. The applicant was denied continued service under the QMP due to a field grade Article 15 punishment resulting in a referred NCOER. Specifically, on 1 March 2017, the applicant was given a nonjudicial punishment (NJP) for two violations of Article 92, UCMJ (dereliction in the performance of duties). The relevant portions of the Article 15 explain the grounds for those violation as: * In that the applicant knew his duties at or near Fort Campbell, KY, between on or about 28 November 2016 and on or about 27 January 2017, were derelict in the performance of those duties in that he willfully failed to return his M4 carbine, as it was his duty to do, in violation of Article 92, UCMJ * In that he knew of his duties at or near Fort Campbell, KY, between on or about 28 November 2016 and on or about 27 January 2017, were derelict in the performance of those duties in that he willfully failed to return his Night Vision Goggles as it was his duty to do, in violation of Article 92, UCMJ b. The investigation resulting in the Article 15 proceedings, and the referred NCOER are material errors that resulted in the QMP selection. The factual inaccuracies during the investigation into whether the M4 carbine and night vision goggles were appropriately returned resulted in the misapplication of Army regulation and the Manual for Courts-Martial (MCM). Those errors substantially prejudiced the applicant because they culminated in his selection for QMP. Pervasive factual and legal errors render the QMP selection notice to be proverbial fruit of the poisonous tree. c. After due consideration, the applicant requests his retention in the U.S. Army in accordance with (IAW) Chapter 19 of AR 635-200 (Active Duty Enlisted Administrative Separations). An accurate chronology of events prior to the Article 15 proceeding is vital to this QMP appeal because the correct facts have not been presented before now. Had accurate information been available in the Article 15 proceedings, the Article 92 violation and NJP would likely not have occurred. The relevant events are: (1) On 28 November 2016, the applicant appropriately utilized the arms room and the primary armorer, Specialist (SPC) W_, signed out a M4 and PVS-14 goggles in anticipation of the applicant attending the pre-Ranger Course. This request was properly documented using a DA Form 2062. (2) On or about the first week of December, a three-week Battalion field training exercise (FTX) began involving Headquarters and Headquarters Company (HHC). While the FTX was still occurring, the applicant was transported back to Fort Campbell from the Pre-Ranger Course on or about 17 December 2016. (3) When the applicant returned to the unit, his company was still in the field and no rear detachment was present. He was unable to contact the primary armorer or the alternate armorer because they were still in the field. Further complicating the personnel shortage, block leave from 15 December 2016 through 3 January 2017 was already in effect. d. The “fruit of the poisonous tree doctrine” is a legal doctrine that states evidence that is derived from an illegal search is inadmissible because the evidence is tainted with illegality (Black's Law Dictionary 304 (3d Pocket Edition, 1996)). Although the fruit of the poisonous tree doctrine has historically been used in criminal law, it is used analogously in this instance. Without access to the arms room, the applicant was faced with a temporary storage decision regarding the M4 and PVS-14. The only secure option was the staff duty NCO's desk vault. At the time, Staff Sergeant (SSG) R_ was the staff duty NCO present and the only Soldier whom the applicant encountered after his return from the pre-Ranger Course. The applicant informed SSG R_ of his unsuccessful attempts to return the sensitive items to the armorer(s) and the need for safe storage. e. The M4 was then placed the vault after being properly logged by SSG R_. The M4 was deconstructed and remained in the applicant's assault pack tagged with his name, company, and social security number. After his pack was placed in the vault, he began his block leave. While out on leave, the applicant sent emails to learn when his company would return from the field. This was an attempt by the applicant to return the M4 and night vision goggles even if he had to return temporarily from leave. His attempts to contact Soldiers in his company did not yield any results. On 20 December 2016, HHC returned from the field. f. An HHC sensitive items inventory for December 2016 showed 100% inventory of all sensitive items. At the time, four (4) M4 carbines remained with Soldiers who signed them out for use, including the applicant's M4. The applicant returned from leave in late January 2017. On 27 January 2017, his labeled assault pack was noticed in the staff duty vault by SGT I_. The applicant was notified that day by First Sergeant (1SG) J_ that his backpack was removed from the vault with the M4. 1SG J_ asked the applicant to return the night vision goggles, which was done immediately. Without knowledge of the applicant's attempts to return the M4 and night vision goggles, an investigation into the storage of the M4 and goggles was initiated. g. The investigation operated under the presupposition that the applicant never attempted to timely return his M4 and night vision goggles or properly secure those items. That was due to misinformation about him storing his M4 in the S2 safe. He never ever stored his M4 in that safe as it was a less secure location. Because of those incorrect assumptions, the investigation surrounded irrelevant witnesses from the S2 shop. SPC W_, the primary armorer, authored a statement on 27 January 2017, which highlights the applicant's attempts to return the weapon and night vision goggles. The statement notes circumstances beyond the applicant's control prevented return of the M4. Specifically, "block leave and field problems" prevented SPC Wood from having contact with the applicant in December and January 2017. h. SPC W_'s statement also evidences the origin of the investigative error. Once back from leave, SPC W_ inquired about returning the M4 and asked where the firearm was located. The applicant informed him the M4 was with him during training and, outside of that, it was locked in the vault. SPC W_ presumed this to mean the S2 safe without clarifying that "vault" specifically referenced the staff duty NCO vault. SPC W_'s misinterpretation resulted in the investigation focusing on the S2 shop. The harmful effects of SPC W_'s presumption is evident when examining statements from the S2 Soldiers. Specifically, Private First Class (PFC) H_ and F_ both gave sworn statements saying the applicant never approached them about storing the M4 in the S2 safe. These statements were relied on to conclude the applicant had failed to properly secure the M4 in the S2 safe as he claimed to SPC W_. If SPC W_'s incorrect assumption never occurred, the investigation would have surrounded the applicant's efforts to securely store the items after returning in December. i. Had the investigative scope surrounded accurate facts, the NJP and referred NCOER would not have occurred. The applicant's 2016-2017 NCOER itself also contains another factual error which likely contributed to the QMP selection. In Part IV of the NCOER, the applicant is listed as not meeting the standard for character of an NCO because he "admitted to bringing home PVS 14, which violates DOD and Fort Campbell Regulations (CAMREGS)." He never gave a statement during the dereliction of duty investigation. Therefore, he never admitted to taking the goggles home. j. In addition to factual errors, the NJP is based on the misapplication of Article 92, UCMJ and AR's. Part IV of the MCM outlines the requirements for an Article 92 violation surrounding "Failure to obey order or regulation." Paragraph 16a explains that a Soldier may be in violation of Article 92 where the Soldier is derelict in the performance of duties. However, that determination is contingent upon evidence satisfying several different factors. First, the Soldier must be shown to have a duty. Second, there must be evidence showing the Soldier knew, or reasonably should have known, of that duty. Third, the Soldier must (willfully) (through neglect or culpable inefficiency) be derelict in the performance of those duties. Before a Soldier can be found derelict in the performance of a duty, a very specific legal definition must be satisfied. This definition is articulated in MCM, Part IV, 1J 16.c.3.(c): (1) A person is derelict in the performance of duties when that person willfully or negligently fails to perform that person's duties or when that person performs them in a culpably inefficient manner. (2) "Willfully" means intentionally. It refers to the doing of an act knowingly and purposely, specifically intending the natural and probable of the act. (3) "Negligently" means an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances. (4) "Culpable inefficiency" is inefficiency for which there is no reasonable or just excuse. k. In the applicant's case, he was alleged to have been derelict due to his failure to follow Army and DoD regulations. Fort Campbell has adopted AR 190-11 (Military Police – Physical Security of Arms, Ammunition, and Explosives) related to the safety and security of arms. In pertinent part, AR 190-11 acknowledges that emergencies arise in which a Soldier is excused from complying with arms room storage protocol. AR 190-11, chapter 4, paragraph b, explains that each weapon issued for training, operations, or any other reasons will be carried on the person of the individual to whom issued at all times or it will be properly safeguarded and secured. Except during emergencies, weapons will not be entrusted to the custody of any other person except those responsible for the security of operational weapons. These persons will comply with issue and tum-in procedures. l. Applying AR 190-11 shows the applicant was not derelict in finding an alternate secure storage for the M4. Returning from the pre-Ranger Course without access to the arms room to tum in the weapon presented an emergency. AR 190-11 therefore permitted him to find an alternate secure source for the weapon. He found a secure location within a vault that was guarded by a staff duty NCO. This location was on a military installation in compliance with the mandates of AR 190-11. Finally, the M4 was properly logged by the NCO for tum-in procedures once HHC returned from the field. m. In conclusion, there is substantial evidence the QMP selection rests exclusively on the January 2017 flawed investigation. As shown in this appeal, the investigation created false perceptions about the applicant's storage of the M4 and efforts to return the firearm. Even minimal scrutiny of the circumstances would have shown the applicant deconstructed the M4 for safe storage in the staff duty vault and not the S2 safe. As the MCM (3rd Edition, 2016), Part IV, paragraph 16.c.3(c) and AR 190-11, chapter 4, paragraph b(1) show, his actions cannot be considered a dereliction of duty when Soldiers are authorized to take such actions in an emergency. The investigative factual errors resulted in the legal errors of the misapplication of the CAMREGS and Article 92 of the UCMJ. But for the combination of those errors, the applicant would not have been given NJP or a NCOER resulting in QMP selection and recommendation for separation. Accordingly, the applicant respectfully requests his retention in the U.S. Army IAW with chapter 19, AR 635-200 and find that the QMP selection was a material error. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * Memorandum for QMP board – Character Witness, dated 12 December 2017 * QMP Appeal, dated 25 June 2018 * Letter of Recommendation, dated 15 December 2017 * Memorandum for Record – Request for Continue Active Duty Service under the QMP, dated 21 January 2018 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * two DD Forms 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 22 January 2002 and 23 January 2014 * SSG Promotions Orders, dated 1 March 2013 * NCOER for the period 10 August 2016 through 27 January 2017 * DA Form 2062, dated 28 November 2016 * DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 27 January 2017 * Five DA Forms 2823 (Sworn Statement), dated 27 January 2017 * Article 15, dated 1 March 2017 * Enlisted Record Brief, dated 17 July 2017 REFERENCES: 1. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial. It provides that the 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. A minor offense includes misconduct not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial. It does not include misconduct of the type that, if tried by a general court-martial, could be punished by a dishonorable discharge or confinement of more than one year. The regulation states in: a. Paragraph 3-6 – a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of the NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section. b. Paragraph 3-14 – that commander with the authority to impose the Article 15 must ensure the matter is investigated promptly and adequately. The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident(s). The investigation should address whether an offense was committed, if the Soldier in question was involved, and the character and military record of the Soldier. Usually investigations are informal and consist of interviews with witnesses and/or review of police or other informative reports. The commander after reviewing the evidence determines a Soldier probably has committed an offense and that NJP is appropriate, he or she can take appropriate action. c. Paragraph 3-28 – provides setting aside and restorations. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. 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. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "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 clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. d. Paragraph 3-37b(2) – for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority. e. Paragraph 3-43 – applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). 2. AR 600-8-104 (Army Military Human Resources Record (AMHRR) provides policies, operating tasks, and steps governing the AMHRR. The AMHRR is an administrative record as well as the official permanent record of military Service belonging to a Soldier. Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the AMHRR and/or iPERMS. Table B-1 provides instructions regarding the filing of documents in the OMPF. The Army Personnel Records Division updates the list of Authorized Documents for filing in the AMHRR quarterly. The list of Authorized Documents supersedes the list in Table B-1, AR 600-8-104. The guidelines for filing an Article 15 are found in AR 27-10. 3. AR 635-200, effective 19 December 2016, sets policies, standards, for the separation of enlisted personnel. Chapter 19 of the regulation contains policies and procedures for voluntary and involuntary separation under the QMP. Paragraph 19-7 establishes the same criteria as the regulatory guidance dated 6 September 2011. Paragraph 9-11 of the regulation states Soldiers denied continued service under the QMP may appeal and request retention on active duty based on improved performance and/or presence of a material error in the Soldier's record. The Soldier may submit only one appeal, and requests for reconsideration of denied appeals are not authorized. The Soldier is permitted to include relevant material in support of the appeal. The mere fact a Soldier's file contains a material error, is not necessarily sufficient to overcome the reason for QMP selection. The appeals board may determine the reason for QMP selection still applies, even in the light of correction of an error. Successful appeals result in removal of the denial of continued service determination. 4. Army Directives prescribe Army policy for QMP. Soldiers are considered for QMP if U.S. Army Human Resources Command has received such actions as an Article 15, Memorandum of Reprimand, and/or poor ratings on an NCOER. This is true whether the document is filed in the performance or restricted folder of the Soldier's OMPF. DISCUSSION: 1. The applicant enlisted in the RA on 22 January 2002. He holds military occupational specialty 88M (Heavy Duty Driver). His Enlisted Record Brief shows he served in: * Iraq from June 2003 to May 2004, October 2004 to October 2005, July 2006 to July 2007, and December 2008 to December 2009 * Afghanistan from June 2011 to June 2012 2. He was promoted to E-6 on 1 March 2013. He executed a fourth reenlistment in the RA on 23 January 2014, for an indefinite period. He was assigned to HHC, 626th Brigade Support Battalion, 3rd Brigade Combat Team, Fort Campbell, KY. 3. On 28 November 2016, the applicant completed a hand Receipt/Annex Number (DA Form 2062), acknowledging physical receipt of an M4, Night Vision Goggles, Rifle Bipod, 30 Round Magazine, Sling, and Gun Cleaning Kit from the armory, for the purpose of attending the Pre-Ranger Course at Fort Campbell. 9 4. He was issued a Change of Rater NCOER, for the period 10 August 2016 through 27 January 2017, for his duties as a S3 Schools NCO. This NCOER shows in Part IV (Performance Evaluation, Professionalism, Attributes, and Competence), a rating in the "Character bloc, "Did Not Meet Standards" and rater commented the applicant admitted to bringing home PVS-14 (night vision goggles) which violates DOD and CAMREGS. * the applicant's rater authenticated this NCOER with his signature on 15 March 2017 * the applicant's senior rater and the applicant authenticated this NCOER with their signatures on 29 March 2017 * it was accepted and filed in is official records on 5 April 2017 5. His service record does not contain an investigation pertaining to what occurred following his release from the Pre-Ranger Course. However, the applicant's Article 15 packet contains the following: a. A DA Form 3881 (Rights Warning Procedure/waiver Certificate) he was issued on 27 January 2017. b. Five DA Forms 2823 (Sworn Statement), dated 27 January 2017, showing the following: (1) Lieutenant S_ stated the applicant signed out a M4 on 28 November 2016 for the Pre-Ranger Course and HHC was in the field for a FTX at the same time. From 28 November 2016 to 27 January 2017, the applicant never informed him that he left a weapon with a staff duty officer and the staff duty never informed him that a gun was left in the desk safe vault. (2) First Sergeant J_ stated he received a call from the battalion staff duty who found a backpack in the safe with the applicant's name on it. He immediately called LT S_ and told him what was happening. Once he arrived at the battalion, he was immediately shown the DA Form 2062 and the M4 and Night Vision Goggles were listed on it. He inventoried the back pack and saw the M4. At the time there were no goggles. When the applicant arrived he asked him where the goggles were and he stated they were in his kit at his house. He immediately sent him home to get them. Once he returned with them, he secured them with the M4. (3) SPC W_ stated the applicant signed out the equipment in November 2016. Block leave and field problems occurred where they never had contact. He asked the applicant when he would bring the weapon back and he replied he was going to the Ranger School on 30 January 2017 to get it. He received a call on 27 January 2017 that the weapon was broken down in a backpack at the staff duty and not accounted for. He was under the impression from what the applicant told him that he was using it for ruck and training purposes. He was a SSG and he did not questioned him. And now we are here. (4) SGT I_ stated he was told there was a backpack in the safe, he opened it, and there was a M4 partially broken down inside. (5) PFC F_ stated the applicant never approached him about storing his M4 in the S2 safe. He was unaware the applicant had taken the M4 out of the arms rooms until he was notified by SPC W_. 6. On 27 February 2017, the applicant's commander notified the applicant that he was considering whether he should be punished under Article 15, UCMJ for misconduct. 7. After having been afforded the opportunity to consult with counsel and understanding his rights, the applicant declined trial by a court-martial and opted for a closed Article 15 hearing. He elected not to have a person speak on his behalf and opted to present matters in person. 8. On 1 March 2017, the imposing officer found him guilty. The applicant accepted NJP for willfully failing to return his M4 carbine and night vision goggles between on or about 28 November 2016 and on or about 27 January 2017. The applicant was found guilty by LTC M_ of both offenses. His punishment consisted of forfeiture of pay of $1,740 pay for 2 months, a suspended forfeiture of $870.00 pay for 2 months, and extra duty for 30 days. The imposing commander directed the filing of the NJP in the restricted portion of the applicant's OMPF. 9. On 1 March 2017, he appealed the punishment and elected to submit additional matters. On 8 March 2017, the reviewing judge advocate reviewed the proceedings for legal sufficiency and found them to have been conducted in accordance with the law and regulation and that the punishments imposed were not unjust or disproportionate to the offense committed. 10. On 8 March 2017, after reviewing all matters presented in appeal, the next higher commander, denied the appeal. On 22 March 2017, the applicant acknowledged receipt of the action taken on his appeal. 11. The applicant provides the following: * Memorandum for QMP – Character Witness Statement, dated 12 December 2017, wherein the applicant's squadron commander highly recommended the applicant's retention in the U.S. Army * Memorandum – Letter of Recommendation, dated 15 December 2017, wherein the Command Sergeant Major, 626th Brigade Support Battalion, recommended the applicant's retention in the U.S. Army * Memorandum for Record – Request to Continue on Active Duty, dated 21 January 2018, herein the applicant's company commander highly recommended the applicant's retention in the U.S. Army 12. The applicant and his counsel argue the following: a. A personnel shortage and block leave prevented the applicant from returning the M4 and Night Vision goggles to the armory upon . The investigation resulting in the NJP, the Article 15 proceedings, and the referred NCOER are material errors that resulted in the applicant's QMP selection. b. The applicant was not derelict in finding an alternate location to securely store the M4. Returning from the Pre-Ranger Course without access to the arms to tum in the weapon presented an emergency. AR 190-11 therefore permitted him to find an alternate location to securely store the weapon. 13. The evidence of record shows: a. On 28 November 2016, the applicant completed a hand receipt for an M4 and Night Vision Goggles from the Arms Room for the Pre-Ranger Course. In December 2016, his company became involved in a FTX and he was transported back to his unit from the Pre-Ranger Course. b. He was issued an NCOER for the period 10 August 2016 through 27 January 2017, wherein he received as rating of "Did Not Meet Standard" in the Character area, and his rater commented the applicant admitted to bringing home PVS-14 (night vision goggles) which violates DOD and CAMREGS. c. His Article 15 packet contains five statements, dated 27 January 2017, from individuals demonstrating that upon the applicant's return from the Pre- Ranger Course, he did not return the M4 to the arms room, instead he locked it in a staff duty desk safe, and he stated that he took the Night Visions Goggles home. At that time he was also advised of his rights. d. On 1 March 2017, he accepted NJP for dereliction of duty inasmuch as he failed to return M4 carbine and NVGs, despite having a duty to do so. At the conclusion of the NJP proceeding, the applicant was found guilty of both offenses. His appeal was denied and the denial was acknowledged by him. The NJP was directed to be filed in the restricted section of his OMPF. e. The reviewing judge advocate found his NJP proceedings were conducted in accordance with law and regulation. His NJP and allied documents are currently filed in the restricted folder of his OMPF as directed by the imposing commander. f. The applicant states and provides evidence he has been selected for release from the Army under the QMP. 14. The Board must determine if there is sufficient evidence to support the removal of the Article 15, dated 1 March 2017, from the applicant's OMPF and to modify (rater comments) or remove the NCOER for the rating period 10 August 2016 through 27 January 2017. //NOTHING FOLLOWS// DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 9 July 2019 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for xxxxxxxxxXXXXX., SSN XXXXXXXXXX, AR20180014427 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 24 May 2019, in which the Board majority recommended granting relief for the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. In consideration of the evidence, it is my decision not to adopt the Board’s majority recommendation to grant relief. I find no error or injustice associated with the applicant’s nonjudicial punishment or the unfavorable comments on his Noncommissioned Officer Evaluation Report. Therefore, under the authority of Title 10, United States Code, section 1552, I deny the applicant’s requested relief. 3. I direct there be no change to the applicant’s records. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: DF eputy Assistant Secretary of the Army Encl CF: ( ) OMPF Printed on Recycled Paper