IN THE CASE OF: BOARD DATE: 27 May 2021 DOCKET NUMBER: AR20200002414 APPLICANT REQUESTS: removal of unfavorable information relating to an Article 15 from his official military personnel file (OMPF) as follows: * Removal of the contested Article 15 and the vacation of suspended punishment; * Removal of the Bar to Reenlistment; * Constructive Service Credit of 1 year 8 months; and, * Placement on the active duty retired list * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney Letter * DD Form 214 (Report of Separation from Active Duty) * 2 DD Form 214 (Certificate of Release or Discharge from Active Duty) * 3 DA Form 4187 (Personnel Action) * Orders 317-43 * Physician Letter Major S__ * Physician Letter D__ * DA Form 8028 (U.S. Army Reserve Bar to Reenlistment Certificate) * Bar to Reenlistment Letter * 2 Chronological Statement of Retirement Points * DA Form 2627 (Record of Supplementary Action under Article 15) * Psychiatric Evaluation * Enrollment into the Adult Partial Hospitalization Program (APHP) * Physician Letter R__ FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 through his attorney states there are multiple errors associated with the application that were substantially prejudicial to his rights. It was unjust to impose Article 15 punishment for failure to attend advanced noncommissioned officer candidate (ANCOC) when he declined the promotion because his wife suffered a catastrophic injury while giving birth to their child. It was in error under Title 10, U.S. Code, section 1176 (10 USC 1176) to separate him before he was retirement eligible while he had over 18 years of service, but less than 20 and the retirement point calculation was incorrect. He should have over 19 years’ service. a. He served from 3 April 1973 until 12 May 1997. On 17 September 1996, he was wrongfully barred from reenlistment. b. He came to the recruiting field in 1988. He was married that same year. He earned his Recruiting Badge in approximately a year. He had nearly 7 years as a recruiter prior to his wife’s surgery. His first child with his wife was born in 1991. He was promoted to staff sergeant (SSG)/E-6 while he was in recruiting. He enlisted a significant number of Soldiers. He was frequently over mission. c. On 24 June 2019, in response to a Congressional Inquiry, Reserve Component Retirement Branch corrected his retirement point calculation to add 119 active duty points for the time frame from 14 January 1997 to 12 May 1997 (119 points). They calculated that his total points were 5092 with 18 years, 3 months, and 23 days of qualifying service. They concluded that he was not eligible for retired pay. Though, to be clear under 10 USC 1176, he should have been retained until he was retirement eligible. d. The Bar to Reenlistment and Article 15 punishment flowed from a truly tragic set of circumstances. On 3 July 1994, his wife suffered a botched cesarean section procedure at Brooke Army Medical Center (BAMC). Military doctors punctured her subclavian artery causing a 40-day coma and disabilities that continue to the present day. At the time, he was a recruiter with an impeccable service record. He was selected for promotion at the time. e. The injuries to his wife necessitated significant follow on medical appointments and support from the applicant. He plainly no longer had the ability to meet the demanding requirement s of recruiting duty. f. On 1 December 1995, he was promoted to sergeant first class (SFC)/E-7. He was a highly qualified SSG. This was approximately one year after his wife recovered from the four-month coma. Prior to promotion orders, he declined the promotion because he was unable to attended ANCOC (Advanced NCO Course), because of his wife’s medical needs. The promotion orders were revoked on 3 July 1996, ANCOC is only required for promotion to SFC. He declined promotion. He was in constant communication with the command about the orders. It is a 2-month course. He had a 2- year-old son, a 7-year-old daughter, and his wife was heavily medicated. There was no other family care plan. g. In that time, a number of conflicts with the command arose that could have been avoided with more effective leadership. On 24 July 1996, he received an Article 15 punishment for failing to attend ANCOC. He did not have the benefit of any advice from trial defense service. He did not speak to any lawyers prior to the Article 15. He would have turned down the Article 15. h. It is unclear why an Article 15 was appropriate. He declined the promotion in November 1995-before he was promoted. He declined the promotion specifically because he knew that he could not attend ANCOC. It makes no sense why his caring for a wife in a coma deserves an Article 15 for not attending a course required for a promotion that he declined. The firm would have demanded a court martial for sure. i. The July 1996 Article 15 resulted in a suspended punishment. The suspension was vacated and ordered executed barely one month later in August 1996. He was accused of failing to go to a medical appointment. Article 15s for missing medical appointments are among the most despicable of uses for an Article 15. His wife was in a coma and had constant medical appointments that continue to this day. There was a minor medical emergency where his son bit his tongue. He had spent the night at the emergency room. The next morning, he missed a 0700 medical appointment. He missed one appointment since his wife’s injury in 1993 and they jammed him up on an Article 15. It should be noted that he was consistently making mission through this period. j. On 6 January 1997, he was barred reenlistment. By March 1997, these issues lead him to a major depressive disorder. He went into a partial hospitalization on 19 March 1997. He was discharged from the Army on 12 May 1997. Further, the retirement point calculation was incorrect. Using 53 points per year, his total should be over 19 years. But, even at the current calculation over 18 years, he should have been permitted to retire as a matter of law. 3. The applicant provides: a. DA Form 4187 (Personnel Action) for ANCOC deletion, dated 24 October 1995, that shows he declined promotion to SFC due to being unable to attend ANCOC due to his wife’s medical conditions. It was approved by his commander. b. DA Form 4187, dated 31 October 1995, that shows he requested an exception to policy to attend reserve component ANCOC. He could not attend ANCOC due to his wife’s medical conditions. It was approved by his commander. c. Orders 317-43, 13 November 1995, he was promoted from SSG to SFC. Effective date of promotion was 1 December 1995 with a date of rank of 1 December 1995. (1) Additional Instructions: Soldiers accepting this promotion understand that they have 30 days from the effective date of this order to decline the promotion and acceptance of this promotion will subject him or her to worldwide reassignment to a position commensurate with the grade and military occupational specialty (MOS). (2) Soldiers accepting a conditional promotion and are subsequently denied enrollment, declared a “No-Show” becomes academic failures or otherwise does not meet graduation requirement will have their promotion revoked by PERSCOM (Total Army Personnel Command, now called U.S. Army Human Resources Command (HRC)), and will be administratively removed from the centralized promotion list. d. On 1 December 1995, Dr. S__ wrote a letter that stated it was brought to his attention that the applicant would be receiving orders to be a recruiter. He was concerned about the long hours required to be a good recruiter and how that would affect his family. He was also concerned about possibly being moved away from. (1) The applicant’s spouse had significant medical problems that required his daily attention. She had multiple medical appointments each week that were essential to her regaining her health. She required medical attention that could only be received at a tertiary care cent such as BAMC. (2) If he were required to move and take on very lengthy daily work hours, this would clearly be detrimental for his spouse and children. He had more stress and pressure on him secondary to the type of illness his spouse suffers than most Soldiers could endure. Dr. S__ complimented him for his ability to deal with it all so far. e. DA Form 4187, dated 24 June 1996, shows he was unable to attend 24 June 1996 scheduled ANCOC because: Mediation date 20 June 1996, non-availability of anyone or care agency to care for his wife and family. Furthermore, a civilian physician detected gallstones in his wife and she was pending surgery. He had requested assistance from local Judge Adjutant General in reference to his previous request for Troop Program Unit (TPU) ANCOC and local stabilization. He requested extension on required ANCOC attendance within a year as stated in his promotion orders. This request was based on the availability of family care services. f. On 26 July 1996, a letter from Dr. D__ shows the applicant had been dealing with his wife’s medical catastrophe which occurred at BAMC on 3 July 1994, since which time she had been totally disabled. He had to manage both her care and their children. This interfered with his military career. An out of court settlement was reached with the U.S. Government had been completed and was pending approval by the U.S. Attorney. (1) He was able to manage his family and military duties just he reached the settlement a month ago 20 June 1996. Following that his supervisors apparently had been intolerant of his time away from work. (2) Over the past month he had been conflicted-torn between family and career. He had been experiencing anxiety, mood swings, and emotional turmoil. Symptoms included bouts of fearfulness, confusion, insomnia, headaches, and fatigue; and feeling of failure, uselessness and helplessness. He had come to be suspicious and untrusting. (3) In his 23 years of service the applicant had had no Article 15s or courts- martial. He had had numerous letters of commendation and awards through his career until the past month. (4) He was diagnosed with adjustment disorder with mixed anxiety and depressed mood. The recommendation was referral to Mental Health Clinic for individual help and command consultation. g. DA Form 8028-R (U.S. Army Reserve Bar to Reenlistment Certificate), dated 17 September 1996, barred him from reenlistment for continuing service as a member of the USAR in any status or category. It also shows: (1) His service data shows: 12 years, 1 month, 8 days’ total active federal service, and 23 years, 5 months, 8 days’ total military service (for pay). (2) Item 6 shows a record of NJP, on or about 23 June 1996, for failure to go at the time prescribed to his appointed place of duty (ANCOC). His punishment was, forfeiture of $990.00 per month for 2 months suspended until 23 January 1997, restriction for 45 days suspended until 23 Jan 97, extra duty for 45 days suspended until 23 January 1997. On or about 14 August 1996, without authority, failed to go to the time prescribed to his appointed place of duty (Community Health Service BAMC). His punishment was of $900.00 for 2 months, extra duty for 45 days, Restriction for 45 days. (Vacation of the first punishment) (3) Item 8 other factual and relevant indicators of un-trainability or unsuitability, shows no demonstrated potential for future service (fail to report of place of duty) and declined attendance in professional development courses such as ANCOC. h. A bar to reenlistment letter, dated 6 January 1997, brigadier general (BG) K__, approved the bar to reenlistment. It states: (1) The bar to reenlistment would be entered on to his DA Form 2-1 (Enlisted Qualification Record), Personnel qualification Records, and the original copy of the bar to reenlistment was retained in his Military Personnel Records Jacket (DA Form 201). The proper unit commander would review his bar to reenlistment each 6 months after the date of the approval and 30 days prior to his scheduled departure from your unit, release from active duty (REFRAD), or discharge from the USAR. (2) The unit commander will initiate proceedings to REFRAD or discharge a Soldier with an approved bar to reenlistment on completion of the second 6-month review unless a recommendation for removal of the bar is submitted. i. Chronological statement of retirement points, 18 February 1997, shows 16 years, 11 months, and 24 days of qualifying service towards non-regular retirement. j. On 13 March 1997, he was enrolled into the adult partial hospitalization program, and on 19 March 1997, a letter from Dr. R__ requested consideration of allowing him to continue in the program an additional week. k. On 4 April 1997, a letter from Dr. D__ shows the applicant’s psychiatric evaluation, where Dr. D__ reiterated, the applicant’s familial and military issues. (1) He was hospitalized 16 August 1996 to 21 August 1996 for adjustment disorder with depressive features at Wilford Hall Air Force Hospital. Psychological evaluation performed on 9 November 1996 indicated a diagnosis of dysthymic disorder, as well as major depression with suicidal potential. (2) Adding to his burdens of family care he was charged with not attending ANCOC because of family responsibilities and was given an article 15 for this offense. Additionally, he was harassed by being placed on 7:30 to 5:00 pm rigid scheduling. Leaving no time to assist his disabled wife with the care of the children or get to medical appointments. His commander was not interested in hearing any of his problems or making any accommodation to his difficulties. l. His updated DA Form 5016 (Chronological Statement of Retirement Points), dated 24 June 2019, show he completed 18 years, 3 months, and 23 days of qualifying service toward non-regular retirement. 4. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 9 April 1973 and held military occupational specialty (MOS) 41C (Fire control Instrument Repairman). b. He was honorably released from active duty on 3 April 1975 and transferred to the U.S. Army Reserve Control Group (Individual Ready Reserve). His DD Form 214 (Report of Separation from Active Duty) for this period, shows his rank was specialist four/E-4, and he completed 1 year, 11 months, and 25 days’ active service. c. He was assigned to the Individual Ready Reserve (IRR) of the U.S. Army Reserve (USAR) from 4 April 1975 to 7 July 1976. Orders 02-70687, dated 3 February 1977, honorably discharged him from the USAR Ready on 7 July 1976. d. His DA Form 2-1 (Personnel Qualification Record) shows he served: * in the Air Force from 8 July 1976 to 13 January 1980, his DD Form 214 was not available for review * in the USAR from 14 January 1980 to 13 September 1980 * he again served in the IRR from 14 September 1980 to 31 December 1984 and was transferred to the USAR control group * in the USAR from 1 January 1985 to 14 August 1985 * he was in the IRR 15 August 1985 and transferred to the USAR control group * he was honorably discharged on 5 March 1986 e. He entered active duty for training for training (ADT) on 29 October 1986. He completed training for MOS 91C (Practical Nurse) training on 20 October 1987. f. He was honorably released from ADT on 20 October 1987. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 months and 22 days of active service during this period. It also shows: * 12d (Total Prior Active Service) 1 year, 11 months, and 25 days * 12e (Total Prior Inactive Service) 10 years, 11 months, and 16 days g. Order R-06-003178, dated 28 June 1988, he was voluntarily ordered to active military service, in the Active Guard Reserve (AGR) program effective 29 July 1988. He served in the MOS 79R (Recruiter) from 29 July 1988 to 1 December 1996. h. He continued to serve in the USAR, assigned to various positions. He received multiple successful evaluation reports and letters of appreciation. i. Orders 317-43, 13 November 1995, promoted him from SSG to SFC. Effective date of promotion was 1 December 1995 with a date of rank of 1 December 1995. The Additional Instructions on the promotion order read: (1) Soldiers accepting this promotion understand that they have 30 days from the effective date of this order to decline the promotion and acceptance of this promotion will subject him or her to worldwide reassignment to a position commensurate with the grade and military occupational specialty (MOS). (2) Soldiers accepting a conditional promotion and are subsequently denied enrollment, declared a “No-Show” becomes academic failures or otherwise does not meet graduation requirement will have their promotion revoked by PERSCOM/HRC and will be administratively removed from the centralized promotion list. j. Orders 185-1, dated 3 July 1996, revoked Orders 317-43, his promotion to SFC. Army Regulation 140-158 and Headquarters Department of the Army, Message 1215457, November 1991, Reserve Component NCO Education System adjustment ANCOC. He had been administratively removed from the Calendar Year 95 (CY95) Promotion list. He was granted defacto status for the period of 1 December 1995 through 23 June 1996 with a date of rank of 3 September 1991. k. On 17 July 1996, his commander notified him that he was considering whether he should be punished under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty and failing to obey an order by wrongfully missing his reporting date to ANCOC. l. The applicant consulted with counsel and after having done so, he declined trial by a court-martial and elected a closed hearing. m. On 24 July 1996, the imposing officer found the applicant guilty of: (1) On or about 23 June 1996, failing to go at the time prescribed to his appointed place of duty, Recruiter advanced NCO course, and failing to obey a lawful order by wrongfully missing his reporting date. (2) On or about 14 August 1996, without authority, failed to go to the time prescribed to his appointed place of duty (Community Health Service BAMC). His punishment was, forfeiture of $990.00 per month for 2 months suspended until 23 January 1997, restriction for 45 days suspended until 23 Jan 97, extra duty for 45 days suspended until 23 January 1997. (3) The imposing officer ordered the original DA Form 2627 for filing in the performance section of his OMPF. n. On 16 August 1996, his punishment imposed on 24 July 1996 was vacated and the suspended portion of his punishment was ordered executed. The vacation was based on his or about 14 August 1996, without authority, failing to go to the time prescribed to his appointed place of duty (Community Health Service BAMC). o. On 17 September 1996, the commander initiated a DA Form 8028-R (U.S. Army Reserve Bar to Reenlistment Certificate), in accordance with AR 140-111 (U.S. Army Reserve Reenlistment Program) against the applicant barring him from reenlistment for continuing service as a member of the USAR in any status or category. The Bar to Reenlistment Certificate shows: (1) The applicant's record of NJP: on or about 23 June 1996, for failure to go at the time prescribed to his appointed place of duty (ANCOC). His punishment was, forfeiture of $990.00 per month for 2 months suspended until 23 January 1997, restriction for 45 days suspended until 23 Jan 97, extra duty for 45 days suspended until 23 January 1997. On or about 14 August 1996, without authority, he failed to go to the time prescribed to his appointed place of duty (Community Health Service BAMC). His punishment was of $900.00 for 2 months, extra duty for 45 days, Restriction for 45 days. (Vacation of the first punishment) (2) Other factual and relevant indicators of un-trainability or unsuitability, the applicant shows no demonstrated potential for future service (fail to report of place of duty) and declined attendance in professional development courses such as ANCOC. (3) The chain of command recommended approval of the bar. The applicant was provided with a copy of this bar and advised of the basis for this action. He elected to submit a statement on his own behalf (not available for review). p. On 6 January 1997, the approval authority reviewed the recommendation to bar the applicant and approved the bar. The approval authority advised the applicant he had the right to appeal within 7 days to the Office of the Chief of Army Reserve. The approval memorandum stated: (1) The bar to reenlistment would be entered on to his DA Form 2-1 (Enlisted Qualification Record), Personnel qualification Records, and the original copy of the bar to reenlistment was retained in his Military Personnel Records Jacket (DA Form 201). The proper unit commander would review his bar to reenlistment each 6 months after the date of the approval and 30 days prior to his scheduled departure from your unit, release from active duty (REFRAD), or discharge from the USAR. (2) In accordance with AR 140-111, paragraph l-34a, the proper unit commander will review your bar to reenlistment each 6 months after the date of this approval and 30 days prior to his scheduled departure from his unit, REFRAD, or discharge from the U.S. Army Reserve. q. Orders C-04-700513, dated 10 April 1997, shows he was reattached to the Army Transition Point for separation processing. Scheduled date of separation 12 May 1997. r. Orders D-04-800078, dated 10 April 1997, discharged him from AGR program effective 12 May 1997. He was entitled to half separation pay per 10 USC 1174. He would complete 8 years, 9 months, and 14 days of continuous active federal service on 12 May 1997. He would complete 11 years, 9 months, and 4 days of total active federal service on 12 May 1997. s. He was honorably discharged on 12 May 1997 under the provision of USARPC Order R-05-003178A01 (28 July 1988), completion of AGR tour. His DD Form 214 shows he completed 8 years, 9 months, and 14 days’ net active service this. He completed 2 years, 11 months, and 17 days’ total prior active service. He completed 12 years, 4 months, and 3 days’ total prior inactive service. t. There is no evidence the applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) for transfer of records of NJP from the performance to the restricted portion of the AMHRR, and was denied relief. 5. By regulation (AR 15-185), the ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation (AR 27-10), as far as the Article 15 and vacated: a. Paragraph 3-37b, the decision to file the original DA Form 2627 in the performance portion or the restricted portion in the OMPF/AMHRR (Army Military Human Resources Record) will be made by the imposing commander at the time punishment is imposed. The imposing commander’s filing decision will be indicated in item 4b of DA Form 2627. b. Paragraph 3-43b(1), an enlisted Soldier, SGT and above, may request the transfer of a record of NJP from the performance section of their AMHRR to the restricted section, to the DASEB pursuant to the provisions of this regulation. To support the request, the person must submit substantive evidence that the intended purpose of UCMJ, Article 15 has been served and that transfer of the record is in the best interest of the Army. 7. By regulation, once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 8. By law and regulation, Reserve Component members normally are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. The applicant did not complete 20 qualifying years of service, he does not qualify for a 20- year letter. 9. By regulation (AR 140-111), the proper unit commander will review approved bars to continued service in 3-month intervals and 30 days before the Soldier's scheduled departure from the unit, REFRAD, or discharge from the USAR for TPU or IMA Soldiers. a. When removal of a bar is not recommended, the Soldier will be considered for release, discharge, or reassignment to the IRR, as appropriate, under pertinent administrative procedures. Approval to withdraw the certificate will be the same authority who would approve a bar for a Soldier with the same years of service or, if the Soldier has moved to another jurisdiction, the comparable commander in that jurisdiction. b. Upon completion of the prescribed reviews, the unit commander will inform the Soldier that the bar to continued service was reviewed and what action was taken. Any time a bar to continued service is reviewed and not recommended for removal, the Soldier will be reevaluated for possible REFRAD, discharge, or reassignment to the IRR, as appropriate, under pertinent administrative procedures. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The governing regulation allows for the transfer of Article 15s within the OMPF when they have served their purpose; however, not their removal from the OMPF. For example, transferring an Article 15 from the performance section (most visible) to the restricted section (least visible) of the OMPF. In the case, the contested Article 15 was filed in the performance section of his OMPF. Based upon a preponderance of the evidence, the Board determined the Article 15 has not served its purpose. The Board also agreed none of the further requested relief is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XX 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. 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 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 a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. 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. Paragraph 3-6 addresses filing of NJP and provides that 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. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. b. Paragraph 3-37a, the original DA Form 2627 will include as allied documents all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal (see para 3–37g). Copies of the DA Form 2627 will be transmitted by the servicing legal office to the Soldier’s military personnel division (MPD) or the unit personnel office and to the servicing Defense Military Pay Office (DMPO). The DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) will be submitted per AR 600–8–2. c. Paragraph 3-37b(2), 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. d. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF, including apply to the Department of the Army Suitability Evaluation Board (for transfer). It states that 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). It further indicates that 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 Record Management) provides policies, operating tasks, and steps governing the OMPF. Table B-1 (updated periodically by the U.S. Army Human Resources Command) is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or the interactive Personnel Electronic Records Management System. Table B-1 states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4b or 5 of DA Form 2627. 5. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF. Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Documents authorized for filing in the OMPF are kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF. It also serves to protect the interests of the Soldier and the Army. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 6. Title 10 of the United States Code, section 12731 provides the legal authority for age and service (non-regular) retirements. Section 1406 provides the legal authority for establishing the retired pay base for members who first became members before September 8, 1980. Paragraph (b)(2) contains guidance on non-regular service retirement. It states, in pertinent part, that in the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the Armed Forces. A non- regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of qualifying service; and, having completed the service requirement during the period beginning on 1 October 1994 and ending on 30 September 1999, shall have performed the last 6 years of qualifying service while a member of an RC. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002414 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1