RECORD OF PROCEEDINGS 
IN THE CASE OF: BOARD DATE: 9 June 2021 DOCKET NUMBER: AR20200002965 
APPLICANT REQUESTS: removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 29 February 2016), from his Army Military Human Resource Record (AMHRR). 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) 
. Counsel's Brief in Support of Application for Records Corrections, undated, with 17 exhibits – 
. Exhibit 1 – U.S. Army Reserve (USAR) Command Surgeon Email (Reply: (Applicant) Deployment to Afghanistan), 7 October 2015 through 8 October 2015 
. Exhibit 2 – Headquarters, USAR Command, Memorandum (Mobilization Letter of Instruction), 8 October 2015 . Exhibit 3 – USAR Command Surgeon Email (Reply: Afghanistan Rotation 3 May 2016 through 14 August 2016), 27 October 2015 . Exhibit 4 – Headquarters, USAR Command, Memorandum (Mobilization Letter of Instruction), 5 November 2015 . Exhibit 5 – DA Form 4856 (Developmental Counseling Form), 7 December 2015 . Exhibit 6 – Headquarters, First Army, Memorandum (Policy Memorandum Number 11 – Mobilization Standards Policy), 22 November 2013 . Exhibit 7 – DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag), 7 December 2015 . Exhibit 8 – Armed Forces Medical Examiner System Report of Toxicological 
Examination, 14 December 2015 . Exhibit 9 – DA Form 2627, 29 February 2016 . Exhibit 10 – Headquarters, First Army, Memorandum (Article 15 Appeal – 
(Applicant)), 6 April 2016 . Exhibit 11 – DA Form 67-9 (Officer Evaluation Report) and five DA Forms 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation 
Report) covering the periods 23 July 2012 through 31 August 2018, and 
DA Form 1059 (Service School Academic Evaluation Report), 5 January 2015 . Exhibit 12 – DA Form 4037-E (Officer Record Brief), 27 January 2017 . Exhibit 13 – U.S. Army Human Resources Command Memorandum 
(Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), 23 August 2012 . Exhibit 14 – Academy of Health Sciences U.S. Army Diploma, 25 June 1999, and Department of the Army Certificate of Achievement, 19 June 2009 . Exhibit 15 – Headquarters, U.S. Army Recruiting Command Letter, 22 January 2010 . Exhibit 16 – Army Nurse Corps Association Scholarship Program Letter, 1 May 2011 . Exhibit 17 – four Memorandums (Award for Army Physical Fitness Badge), 6 November 2009 through 30 May 2015 
FACTS: 
1. 
The applicant defers to counsel. 

2. 
The applicant's counsel states: 


a. 
The applicant volunteered for a 90-day deployment to Afghanistan. He reported to the Continental U.S. Replacement Center at Fort Bliss, TX, on 20 November 2015. On 23 November 2015, he was informed he would need a medical waiver. On 3 December 2015, the U.S. Army Medical Command denied his request and categorized him as being non-deployable. 

b. 
On 4 December 2015, he was recorded as released from active duty and that evening he went to a bar located on Fort Bliss, TX, and consumed alcohol, as he was upset that he would not be able to deploy. On 7 December 2015, he received a counseling statement for appearing to be drunk in a public place in violation of Article 133 (Conduct Unbecoming an Officer), UCMJ, and in violation of First Army Policy Memorandum Number 11. As a result, he was given nonjudicial punishment on 29 February 2016. 

c. 
The applicant's chain of command made an error in law by finding him guilty of violating Article 92, UCMJ, for failing to obey a lawful order. Although he is contrite about his actions in December 2015 that led to his nonjudicial punishment, he maintains he did not intentionally violate First Army Policy Memorandum Number 11. He had been informed on that day that he was no longer eligible to deploy and he had been released from active duty. He was under the impression the memorandum no longer applied to him. 

d. 
In order to find a Soldier guilty of violating Article 92, UCMJ, it is required for the Soldier to know or should have known about the order when it was disobeyed. Article 92, UCMJ, contains an inherent mens rea (the intention or knowledge of wrongdoing that constitutes part of a crime) requirement that the Soldier intentionally disobeyed the lawful order. The applicant did not intentionally disobey First Army Policy Memorandum Number 11 because he genuinely believed once he was placed in a "release from active duty status" and not qualified for deployment, the memorandum no longer applied to him. 

e. 
His command made an error in discretion by giving him nonjudicial punishment for his actions in December 2015, an action which would undoubtedly stifle and jeopardize his brilliant Army career. A review of his Army career demonstrates he is an officer of the highest character and integrity. He has been routinely lauded in his officer evaluation reports for his clinical expertise as a nurse anesthetist, patient care, confidence, self-development, and professionalism. He has received numerous awards and decorations that further evince his outstanding performance as an officer and his dedication to the Army. 

f. 
A review of the unique fact pattern that led to his nonjudicial punishment in juxtaposition to his decades of outstanding service as a Soldier clearly and convincingly demonstrates his actions that led to his nonjudicial punishment were an aberration. He has dedicated his entire life to serving the Army and he has an impeccable record. 

g. 
This is a simple case of a misunderstanding that has jeopardized his future in the Army. Even worse, his stellar character, reputation, and integrity have been called into question because of the DA Form 2627 that remains filed in his AMHRR. Although he has worked hard to earn back the trust and respect of his superiors, his character will always be called into question when the DA Form 2627 is reviewed. 


3. 
The U.S. Army Human Resources Command memorandum (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)), 23 August 2012, notified him that he completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60. 

4. 
Headquarters, USAR Orders 15-281-00010, 8 October 2015, transferred him to the 946th Medical Team based on the needs of the Army for mobilization purposes. His service records show he was ordered to active duty in support of Operation Enduring Freedom on 17 November 2015. 

5. 
U.S. Army Garrison, Fort Bliss, Orders BL-327-0004, 23 November 2015, authorized his temporary change of station status in support of Operation Enduring Freedom Afghanistan effective 27 November 2015. 

6. 
U.S. Army Garrison, Fort Bliss, Orders BL-327-0004 (R), 24 November 2015, revoked his previous temporary change of station orders for Afghanistan. 

7. 
On 7 December 2015, he received developmental counseling for appearing to be drunk in a public place on 5 December 2015 to the discredit of the Armed Forces, in violation of Article 133, UCMJ, and First Army Policy Memorandum Number 1, which prohibits consumption of alcohol by all personnel attached to First Army for mobilization or demobilization processing. He agreed with the counseling and signed and dated the DA Form 4856. 

8. 
On 29 February 2016, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to obey a lawful general order on or about 4 December 2015, to wit: First Army Policy Memorandum Number 11 (Mobilization Standards Policy), 22 November 2013, paragraph 7a, by wrongfully consuming alcoholic beverages. This is a violation of Article 92, UCMJ. 


a. 
He elected not to demand trial by court-martial and to attach matters in his defense. His matters to his defense are not in evidence for the Board to review. 

b. 
The Commanding General, First Army Division West, found the applicant guilty of all specifications and directed filing the DA Form 2627 in the performance folder of his AMHRR. 

c. 
The applicant elected to appeal and to submit additional matters. His additional matters are not in evidence for the Board to review. 

d. 
His punishment consisted of forfeiture of $3,763 pay per month for 2 months and a written reprimand. 

e. 
On 30 March 2016, the reviewing judge advocate, having considered the appeal, opined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed. 

f. 
On 5 April 2016, the Commanding General, Headquarters, First Army, denied the applicant's appeal. 


9. 
Headquarters, 5th Armored Brigade, memorandum (Refusal to Sign Article 15 – (Applicant)), 11 April 2016, states the applicant was provided a copy of his nonjudicial punishment on 11 April 2016 and notified of denial of his appeal. He refused to sign block 9 of his DA Form 2627 acknowledging the action on his appeal. 

10. 
He was released from active duty on 28 April 2016. Item 12c (Net Active Service This Period) of his DD Form 214 shows he completed 5 months and 12 days of active service during this period. 

11. 
His records contain no evidence of an officer evaluation report covering the period 23 July 2015 through 3 June 2016. 

12. 
The Secretary of the Army memorandum (Promotion Review Board RP1712-21, Fiscal Year 2017 Lieutenant Colonel Army Reserve Non-Active Guard Reserve, Army Nurse Corps, Competitive Category, Promotion Selection Board), 28 March 2018, states the Secretary of the Army removed the applicant from the promotion list and directed the Commanding General, USAR, to initiate elimination proceedings. 

13. 
Secretary of the Army Memorandum (Promotion Review Board RP1912-03, Fiscal Year 2019 Lieutenant Colonel Army Reserve Non-Active Guard Reserve, Army Nurse Corps, Competitive Category, Promotion Selection Board), 21 April 2020, the Secretary of the Army removed the applicant from the promotion list. 

14. 
His seven officer evaluation reports covering the periods 23 July 2013 through 31 August 2018 (not including the period covering 23 July 2015 through 3 June 2016) show: 


a. His raters rated his overall performance as "Excels," "Capable," and "Proficient." 
b. His senior raters rated his potential compared with officers senior rated as "Highly Qualified" and "Qualified." 
15. Army Medical Department of the U.S. Army Professional Management Command memorandum (Award of the Army Reserve Components Achievement Medal), 21 February 2021, awarded the applicant the Army Reserve Components Achievement Medal (9th Award). 
BOARD DISCUSSION: 
1. After reviewing the application and all supporting documents, the Board found that 
relief was not warranted. The Board carefully considered the applicant’s request, 
supporting documents and evidence in the records. The Board considered the 
applicant’s statement, his military service record and documents provided by the 
applicant. Based upon the documentary evidence presented by the applicant, his counsel, and found within the military service record, the Board found insufficient 
evidence of an error or injustice which would warrant a correction of the applicant’s 
record. After reviewing the facts and circumstances, the Board found that all due process protections were afforded the applicant and that the processing of his UCMJ was done within regulatory guidelines and standards. For that reason, the Board recommended that denying the requested relief was appropriate. 
2. The Board noted that removal of an Article 15/ UMCJ is generally not warranted unless it is factually incorrect. However, the Board determined based on the evidence 
in the applicant’ record the incident did occur and the applicant acknowledged with his 
acceptance of the Article 15. The applicant was on active duty orders at the time of event leading to the Article 15. The Board found insufficient evidence to remove the Article 15. 
BOARD VOTE: 
Mbr1 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. 
X 
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. 
REFERENCES: 
1. 
Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records. The Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

2. 
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. Chapter 3 implements and amplifies Article 15 of the UCMJ and chapter XXVI of the Manual for Courts-Martial. 


a. Paragraph 3-4 states a commander will personally exercise discretion in the nonjudicial punishment process by: 
(1) 
evaluating the case to determine whether proceedings pursuant to UCMJ, Article 15 should be initiated; 

(2) 
determining whether the Soldier committed the offense(s) where UCMJ, Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and 

(3) 
determining the amount and nature of any punishment, if punishment is appropriate. 

b. 
Paragraph 3-28 describes setting aside of punishment and restoration of rights, privileges, or property. This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored. 

(1) 
Nonjudicial punishment 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. 

(2) 
"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. Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 
c. Table 3-1 (Maximum Punishments for Enlisted Members and Commissioned Officers) states the following authorized maximum punishments may be imposed as nonjudicial punishment by field grade and general officers for commissioned officers: 
. admonition/reprimand . restriction for 30 days . reduction of one grade in peacetime . forfeiture of 1/2 of 1 month's pay for 2 months 
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 Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. 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 Army Board for Correction of Military Records or other authorized agency. 
//NOTHING FOLLOWS//