ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20180015274 APPLICANT REQUESTS: removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 26 January 2011 from the restricted folder of 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) * San Joaquin County Officer Alternative Programs, dated 5 September 2008 * Letter, Newman-Crows Landing Alternative Education, dated 5 November 2009 * U.S. Army Recruiting Command (USAREC) Form 1015-A (Tier Evaluation Worksheet), dated 12 December 2009 * Newman-Crows Landing Adult Education High School Graduation Status Report, dated 15 December 2009 * Letter, Newman-Crows Landing Alternative Education, dated 18 December 2009 * USAREC Form 1015-A, dated 21 December 2009 * Stockton Academic Transcripts, dated 12 January 2010 * Newman-Crows Landing Adult Education High School Graduation Status Report, dated 14 January 2010 * Letter, Newman-Crows Landing Alternative Education, dated 21 January 2010 * USAREC Form 1015-A, dated 26 January 2010 * two DA Forms 2823 (Sworn Statement) from applicant, dated 14 March 2010 * two Contact Histories, dated 16 March 2010 * Stockton Academic Transcripts, dated 30 March 2010 * DA Form 2823 from I____ R____, dated 7 April 2010 * DA Form 2823 from A____ D____ A____, dated 7 April 2010 * DA Form 2823 from C____ A____ R____, dated 7 April 2010 * DA Form 3881 (Rights Warning/Procedure/Waiver Certificate), dated 14 March 2010 * DA Form 2823 from the applicant, dated 23 April 2010 * DA Form 3881, dated 23 April 2010 * DA Form 2627, dated 26 January 2011 * Letter, Headquarters, 6th Recruiting Brigade, undated * DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report), period 1 December 2014 through 30 November 2015 * DA Form 2166-9-2(NCO Evaluation Report), period 1 December 2015 through 29 November 2016 * DA Form 2166-9-2, period 30 November 2016 through 5 January 2018 * Self-authored memorandum, dated 1 July 2018 * two Enlisted Record Briefs, dated 3 September 2010 and 27 August 2018 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 Army Board for Correction of Military Records (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: a. He meets all the requirements for an appeal for removal of the DA Form 2627 from his OMPF. He is a Soldier in the rank/grade of master sergeant/E-8, more than 7 years has elapsed since the date of filling in the restricted folder of his OMPF, and he has received at least one academic report since the filing. b. He was promoted to sergeant first class (SFC)/E-7 and master sergeant/E-8 since the general officer memorandum of reprimand (GOMOR) was filled in the restricted folder of his OMPF. He has consistently earned exceptional ratings in his NCO Evaluation Reports; each of these evaluations clearly reflect that he has consistently upheld high standards of integrity during the rated period. c. He has clearly demonstrated himself to be an excellent and committed NCO by imparting Army Values onto peers, subordinates, and superiors alike. Over the years he has led a countless number of Soldiers and has mentored an abundance of officers that seek him out for his professional opinion, guidance, and mentorship to this day. d. He has been recommended for promotion to sergeant major (SGM)/E-9 and is number 1 of four first sergeants in the battalion according to senior rater comments. Although this DA Form 2627 has served its intended purpose and is now in the restricted folder of his OMPF, he still believes it is hindering him from advancing to SGM where he would have a greater ability to influence, lead, and care for Soldiers. e. He has learned from his mistake since issuance of the DA Form 2627, which occurred over 7 years ago. Removal of the DA Form 2627 from his OMPF would be in the best interest of the Army because he is a valuable asset to the organization as a leader amongst his peers and subordinates. f. His decisions were never questioned, but always supported by those he worked with and those he worked for. He honorably led four-man teams to instruct Ukrainian force members on critical battle damage assessment and repair operations. He was recognized by the brigadier general of the Slovenian forces logistics for outstanding vehicle maintenance training. g. He has served as Maintenance Control Sergeant for a field support command in support of Combined Joint Special Operations Task Force Afghanistan. He has successfully created a maintenance training program for the Afghanistan Army Commandos for diesel engines. In addition, he managed the daily work loads of 26 civilian contractors from 5 different companies in order to support the Combined Joint Special Operations Task Force Afghanistan maintenance requirements as a Maintenance Advisor for the U.S. Army Security Assistance Training Management Organization. h. He has served as the noncommissioned officer in charge of a 10-week Taiwanese mobile training team in which he instructed 20 students in the maintenance of air defense equipment. He was able to continue the Army recruiting mission after the 2011 incident by leading four NCOs in daily prospecting operations, which resulted in the team accomplishing the recruiting station Fiscal Year 2011 mission objective. i. He has worked very hard for the Army and regrets compromising the integrity of the Army and himself in that moment. His awards and skills reflect the time and penitent dedication he has provided the Army for the past 15 years. As a senior NCO, he has always accepted the toughest missions in the most undesirable conditions and numerous times with little to no support. j. He understands and supports accountability for one's actions. He asks for consideration of removal/expunction of the DA Form 2627 from the restricted folder of his OMPF. This will allow him to best serve the Army's interests and continue to pursue the rank of SGM. 3. Permanent Orders Number 334-08, dated 30 November 2007, promoted him to staff sergeant/E-6 effective 1 December 2007. 4. His records contain a Rights Warning/Procedure/Waiver Certificate, dated 14 March 2010, showing he was questioned about suspected impropriety regarding Newman Crows School by Major (MAJ) T____ T. K____, Sacramento Recruiting Battalion. 5. The applicant provided: a. a self-authored sworn statement, dated 14 March 2010, stating he did not know that Newman-Crows Landing was an online based school. When he arrived to the Stockton Recruiting Station, he was given numerous tools to assist him in becoming a successful recruiter. He drove to this school to obtain updates in their achievements, but was never aware it was an online based school. The same procedure is used in his regular schools as a means to keep to keep with their academic progress. As a recruiter for over a year now, he has never been given any punishment under any article of the UCMJ or compromised his integrity; b. a sworn statement from I____ R____, dated 7 April 2010, stating he did attend Newman-Crows Landing online. The applicant told him to go or else he would not qualify him for the Army. The applicant enrolled him and transported him to Neman- Crows Landing. Sergeant J____ called him and said the Newman-Crows Landing diploma was not going to count and that they're conducting an investigation. Sergeant J____ told him to go to "sharp" and to answer the questions truthfully. She said his contract was cancelled and he would have to either go to Elliot College or finish school and go to Delta College; c. a sworn statement from A____ A. D____, dated 7 April 2010, stating the applicant was his recruiter and he told him a bunch of schools he could attend. He thought it was an easier way to catch up on credits and that was what he was told by the applicant; d. a sworn statement from C____ A. R____, dated 7 April 2010, stating he went to Newman-Crows Landing to get a diploma quickly. The applicant was his recruiter. He started in September 2009 with online classes; and e. a self-authored sworn statement, dated 23 April 2010, stating he started recruiting duty in February 2009. The station commander and other recruiters told him about Newman-Crows Landing. The school was Tier 1, but then changed to Tier 2. As a recruiter, his job was to provide non-high school graduates with tools to obtain their high school diplomas or general education diplomas to meet the Army school requirements. The first step in initiating a Tier evaluation was to inform the station commander and he/she would send the form to battalion for approval. Since the Stockton Recruiting Station was using this school, the information was already collected. Once the evaluation was approved, he processed the applicant. He joined the U.S. Army in 2003 in order to return the many things this country has given to him since he was born in Peru. He has never compromised his Army values for personal benefit. He has never had UCMJ action taken against him in his 7 years in the Army. He volunteered for recruiting duty in order to make changes and help his community. Recently, he has been selected for promotion to SFC/E-7. He was provided with tools at his arrival for recruiting duty to assist the community where he recruits. His job is to provide and give the applicants tools to be successful and then it is up to them to utilize these tools. 6. The Record of Proceedings under Article 15, UCMJ, dated 26 January 2011, shows he accepted nonjudicial punishment for making an official statement with intent to deceive to Major (MAJ) H____, to wit: that he only spoke with his station commander regarding the Newman-Crows Landing investigation, at or near Aberdeen Proving Ground, MD, on or about 23 April 2010, which statement was totally false and was then known by him to be false in violation of Article 107, UCMJ (specifically concerned with transporting future Soldiers C____ and R____ (females) to training as well). His punishment included reduction to the rank/grade of sergeant/E-5, suspended, to be automatically remitted if not vacated before 26 April 2011, and forfeiture of $220.00 pay per month for 1 month. 7. His OMPF in the interactive Personnel Electronic Records Management System contains a copy of the DA Form 2627, dated 26 January 2011, filed in the restricted folder. 8. A self-authored memorandum from the applicant, dated 1 July 2018, subject: Request Removal of DA Form 2627 from Restricted Portion of My OMPF, (Applicant), states: a. He respectfully requests removal of the DA Form 2627 and all documents related to this incident dated January 2011. The administrative action has served its purpose by drawing his attention to the poor decision he made that was not becoming of his character. Removal is in the best interest of the Army and his intention is to prove that with this memorandum and the enclosed documents. b. He was able to continue the Army recruiting mission after the 2011 incident by leading four NCO's in daily prospecting operations, which resulted in the team accomplishing the recruiting station Fiscal Year 2011 mission objective. He has worked very hard for the Army and regrets compromising the integrity of the Army and himself in that moment. As a senior NCO, he has always accepted the toughest missions, in the most undesirable conditions and numerous times with little to no support. He understands and supports accountability for one's actions. He asks for consideration of removal/expunction of the DA Form 2627 from the restricted folder of his OMPF. This will allow him to best serve the Army's interests and continue to pursue the rank of SGM. 9. The applicant is presently serving in the Regular Army in the rank/grade of first sergeant/E-8. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board agreed that there was insufficient evidence to indicate that the Article 15 was untrue or unjust. The preponderance of the evidentiary record indicated that the applicant had conducted the misconduct for which the Article 15 was administered, and it was properly and correctly filed. The imposing authority made the decision to administer and file the Article 15 and there is no record of the IA’s desire to remove the Article 15. The applicant has since been promoted twice and therefore, the Article 15 is not unduly or unfairly impacting the applicant. 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. 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 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 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court- martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. a. A memorandum of reprimand may be filed in a Soldier's Army Military Human Resource Record (AMHRR) only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7. b. Paragraph 7-2 provides that once an official document has been properly filed in the AMHRR, 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 AMHRR. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 3. Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice. a. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. It states the decision whether to file a record of NJP in the performance folder of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed. b. Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. It states that applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the ABCMR. It further indicates there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier's record by the ABCMR. 4. 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. a. 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 ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) shows a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 4b of the DA Form 2627). ABCMR Record of Proceedings (cont) AR20180015274 2 1