ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 October 2019 DOCKET NUMBER: AR20190003061 APPLICANT REQUESTS: removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 21 May 2016, from her 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) * Self-Authored Memorandum, dated 21 December 2018, subject: Application for Correction of Military Record – Request Removal of Record of Proceedings under Article 15, UCMJ, from OMPF * DA Form 2166-9-1 (Noncommissioned Officer Evaluation Report (NCOER) (SGT)) covering the period 3 April 2015 through 2 April 2016 * DA Form 2627, dated 21 May 2016 * DA Form 2166-9-1 covering the period 3 April 2016 through 31 August 2016 * DA Form 2166- 9-1 covering the period 1 September 2016 through 20 July 2017 FACTS: 1. The applicant states: a. The alleged incident of misconduct occurred after the nonjudicial punishment was imposed. b. The misconduct for which the punishment was imposed in the record of proceedings under Article 15, UCMJ, was vague and unsubstantiated. She requested a person to speak on her behalf and matters in defense, extenuation, and mitigation were presented by her. After seeking guidance from several mentors and colleagues, she was advised not to appeal the proceedings under Article 15 since the misconduct and nonjudicial punishment was not significant to justify the additional scrutiny, stress, and time involved in the appeal process. She did not receive any reduction in rank, withholding of pay, or any punishment whatsoever. She received a verbal reprimand. c. According to the DA Form 2627, the date of the incident was on or about 2 July 2016 and the punishment for said incident was implemented on 21 May 2016. Under no circumstance can a Soldier be punished for an incident that has not yet occurred. d. She regrets listening to the advice of her mentors and colleagues not to appeal, as the presence of the DA Form 2627 filed in her OMPF directly impedes her potential for favorable career progression, broadening assignments, promotion, and appointment as a commissioned or warrant officer. e. A minimum of 1 year has passed and she has received two NCOERs since imposition of the nonjudicial punishment. Removal of the DA Form 2627 from her OMPF would allow her to move forward with her career goals. Removal of the DA Form 2627 from her OMPF is also in the best interest of the 371st Sustainment Brigade, the Ohio Army National Guard, and the U.S. Army. 2. She is currently serving in the Ohio Army National Guard. 3. She provided her copy of the DA Form 2627, dated 21 May 2016, that shows she received nonjudicial punishment under the provisions of Article 15, UCMJ, while serving in the rank/grade of sergeant/E-5 for treating a superior NCO with contempt, who was then in the execution of his office, by taking pictures of documents on his desk with the intent to "get him in trouble" on or about 2 July 2016 in violation of Ohio Code of Military Justice 5924.91. She did not demand trial by court-martial but requested a closed hearing. She requested a person to speak on her behalf and presented matters in defense, extenuation, and/or mitigation. Her nonjudicial punishment consisted of an oral reprimand. The imposing commander, Colonel R, found her guilty of all specifications and directed filing the DA Form 2627 in the performance folder of her OMPF. (See paragraph 10 below.) 4. Her NCOER covering the period 3 April 2015 through 2 April 2016 shows she was rated "Highly Qualified" by her senior rater for Overall Potential with the following comments: "[Applicant] displays leadership potential through her motivation to learn and apply new and diverse skill sets with minimal oversight and apply learned skills to her daily tasks. Her determination to succeed drives her to excel in any position she is placed in." This report was rendered on 20 June 2018. 5. She was awarded the Army Achievement Medal on 18 July 2016 for exceptional service and performance as the Homeland Response Force Liaison to the Joint Task Force during the Republican National Convention. 6. She was promoted to staff sergeant/E-6 effective 4 August 2017. 7. Her NCOER covering the period 3 April 2016 through 31 August 2017 shows she was rated "Highly Qualified" by her senior rater for Overall Potential with the following senior rater comments: "[Applicant] possesses the attributes to perform at the next higher grade. Her focus on accomplishing complex and varied tasks to exceed the standard enable her to stand out from her peers and give her the skills required for successive assignments." This report was rendered on 20 June 2018. 8. Her NCOER covering the period 1 September 2016 through 20 July 2017 shows she was rated "Highly Qualified" by her senior rater for Overall Potential with the following comments: "[Applicant] is a highly capable NCO whose knowledge with human resources and with an aviation organization has been invaluable towards the readiness of this battalion. [Applicant] has been an excellent fulltime unit support Soldier by demonstrating great physical conditioning and motivation towards team building opportunities. With further mentorship and training she will be an excellent senior NCO." This report was rendered on 7 February 2018. 9. She was awarded the Ohio Award of Merit and the Ohio Faithful Service Ribbon on 22 July 2018 for fidelity to duty, efficient service, and great loyalty to the State of Ohio while assigned as an enlisted member of the Ohio Army National Guard. 10. Her records contain a copy of the DA Form 2627, dated 21 May 2016, filed in the restricted folder of her OMPF that shows the imposing commander administratively corrected the date of the incident to read "2 July 2015" and initialed the correction. The imposing commander also amended his filing instructions on 17 June 2019 to direct filing the DA Form 2627 in the restricted folder of her OMPF. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The applicant contended that the misconduct for which the punishment was imposed under Article 15 was vague and unsubstantiated. However, the Board noted that the Article 15 (DA Form 2627, dated 21 May 2016) gave a clear statement of the applicant’s misconduct, ’that while serving in the rank/grade of sergeant/E-5 she treated a superior NCO with contempt, who was then in the execution of his office, by taking pictures of documents on his desk with the intent to "get him in trouble" on or about 2 July 2016 in violation of Ohio Code of Military Justice 5924.91.” She had a person speak on her behalf and presented matters in defense, extenuation, and/or mitigation. Her nonjudicial punishment justly consisted of an oral reprimand and did not impose other more stringent penalties. 3. The applicant contended that the punishment (oral reprimand) was in error being issued on 21 May 2016 for the misconduct which was shown to occur on 2 July 2016. However, review of the records shows that the imposing commander discovered the typographical error of 2 July 2016 and correct the error to show 2 July 2015 prior to the issue of the oral reprimand on 21 May 2016. This correction was made by the imposing commander and he directed that the DA Form 2627 be filed in the applicant’s restricted record. The Board determined that there was no error in the imposition of the oral reprimand or the filling of the DA Form 2627. 4. The board considered the evidence presented but did not find sufficient justification for removing the DA Form 2627 from the applicant’s restricted record nor has the imposing commander recommended its removal. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice. Chapter 3 provides that nonjudicial punishment 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. Nonjudicial punishment 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. In cases where administrative error results in incorrect entries on DA Form 2627 or DA Form 2627-1, the appropriate remedy generally is an administrative correction of the form and not setting aside of the punishment. b. Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folder of the OMPF will be made by the imposing commander at the time nonjudicial punishment 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. 2. Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. Chapter 7 sets forth the policies and procedures whereby a person may seek removal of unfavorable information from his or her Army Military Human Resource Record (AMHRR) or transfer of unfavorable information from the performance folder to the restricted folder of his or her AMHRR. 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. 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. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 3. 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 OMPF, finance related documents, and non-service related documents deemed necessary to store by the Army. 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. // NOTHING FOLLOWS // ABCMR Record of Proceedings (continued) AR20190003061 6 1