IN THE CASE OF: BOARD DATE: 5 March 2021 DOCKET NUMBER: AR20210005470 APPLICANT REQUESTS: in effect, removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 31 March 2017, and the allied Headquarters, U.S. Army Special Operations Command, memorandum (Article 15 Admonishment), 27 April 2017, 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) * Memorandum (Request for Removal of Article 15 of (Applicant)), 6 January 2021, with three enclosures – * Enclosure 1 – seven Memorandums/Letters of Support * Enclosure 2 – four DA Forms 67-10-1 (Company Grade Officer Evaluation Report) covering the periods 14 June 2017 through 26 May 2020 * Enclosure 3 – four military award certificates * DA Form 2627, 31 March 2017, with allied documents – * Applicant's Memorandum (Letter to the Commanding General), 25 April 2017 * General Officer Article 15 Proceedings – (Applicant) Extract, 27 April 2017 * Headquarters, U.S. Army Special Operations Command, Memorandum (Article 15 Admonishment), 27 April 2017 FACTS: 1. The applicant requests removal of the Article 15 memorandum of admonishment, 27 April 2017, from the performance folder of his AMHRR in accordance with Army Regulation 600-37 (Unfavorable Information). a. Army Regulation 600-37 allows such removal when the nonjudicial punishment has served its intended purpose, the DA Form 2627 has been filed in the AMHRR for at least 1 year since imposition of the nonjudicial punishment, and the individual has received at least one officer evaluation report since filing of the DA Form 2627 in his AMHRR. b. In his situation, the nonjudicial punishment has served its intended purpose. It has had a significant impact on his career. As a direct consequence of the DA Form 2627 filed in his AMHRR, he has failed to be selected for promotion to the rank of major a second time. He has been removed from the promotion list twice as a direct result of the DA Form 2627 filed in his AMHRR. c. Following last year's major promotion board, a subsequent board, which was then approved by the Secretary of the Army, recommended him for selective continuation until 1 May 2023, allowing him an additional three attempts to achieve the rank of major. d. His performance evaluations and award recommendations are evidence of the extent and depth of his commitment to his professional responsibilities and having a strong positive influence on others as he modeled the Army values. e. He has enclosed recommendations from his current and previous chains of command for removal of the records of nonjudicial punishment from the restricted folder of his AMHRR. 2. The applicant was serving in the rank/grade of captain/O-3 with the U.S. Army Special Operations Command deployed to Iraq when he was involved in an incident resulting in imposition of nonjudicial punishment under the provisions of Article 15, UCMJ. 3. He received nonjudicial punishment under the provisions of Article 15, UCMJ, on 31 March 2017 as follows: a. In that he did, at or near Erbil, Iraq, failed to obey lawful general order, to wit: U.S. Central Command General Order Number 1C, 31 May 2013, paragraph 2a(1), and Joint Special Operations Command Policy Number 3, 16 June 2014, by wrongfully consuming alcohol on or about 9 December 2016 in violation of Article 92 (Failure to Obey Order or Regulation), UCMJ. b. In that he did, at or near Erbil, Iraq, wrongfully consumed alcohol in the presence of subordinates and wrongfully allow subordinates to consume alcohol in violation of U.S. Central Command and Joint Special Operations Command General Orders Number 1 on or about 9 December 2016, which conduct was unbecoming of an officer and a gentleman in violation of Article 133 (Conduct Unbecoming), UCMJ. c. In that he did, at or near Erbil, Iraq, wrongfully engaged in inappropriate and unprofessional conduct with a vendor employee by sending her flirtatious text messages on or about 9 December 2016, which conduct was unbecoming an officer and a gentleman in violation of Article 133, UCMJ. d. His punishment consisted of an admonishment and forfeiture of $1,000.00 pay per month for 2 months. 4. In his memorandum (Letter to the Commanding General), 25 April 2017, he stated his actions on 9 December 2016 were uncharacteristic of his normal behavior and he took full responsibility for failing to obey a lawful order, disobeying General Orders Number 1, and engaging in behavior unbecoming an officer. 5. On 27 April 2016, the Commanding General, U.S. Army Special Operations Command, having considered the offenses and the evidence presented, including the applicant's rebuttal matters, imposed the following nonjudicial punishment under the provisions of Article 15, UCMJ: a memorandum of admonishment and forfeiture of $1,000.00 pay per month for 2 months. 6. On 27 April 2016, the Commanding General, U.S. Army Special Operations Command, admonished him in writing for violating U.S. Central Command and Joint Special Operations Command General Orders Number 1 for consuming alcohol in theater and for conduct unbecoming an officer and a gentleman for allowing subordinates to consume alcohol in violation of General Orders Number 1, and for sending flirtatious text messages to a vender employee. The commanding general stated: a. The applicant's actions as a commissioned officer were intolerable and inexcusable. As an officer and troop commander, he was expected to uphold Army values and set the example for others to follow, yet by his actions, he utterly failed to follow and enforce the law. b. This admonishment is imposed as a punitive measure under Article 15, UCMJ, and will be filed with his DA Form 2627 in the restricted folder of his AMHRR. 7. The DA Form 1613 (Records Cross Reference), 6 September 2017, regarding the applicant's classified officer evaluation report covering the period 21 May 2016 through 14 June 2017 shows the rater's rating of "Proficient" and the senior rater's rating of "Qualified." 8. The Secretary of the Army memorandum (Promotion Review Board AP1807-02, Fiscal Year 2017, Major, Force Management, Promotion Selection Board), 28 December 2018, states the Secretary of the Army directed removal of the applicant's name from the Fiscal Year 2017 Major, Force Sustainment List. 9. His four DA Forms 67-10-1 (Company Grade Officer Evaluation Reports), 14 June 2017 through 26 May 2020, show his raters consistently rated his performance as "Proficient" or "Excels" and his senior raters rated his potential as "Highly Qualified" or "Most Qualified." His officer evaluation report covering the period 22 April 2019 through 18 September 2019 shows his senior rater commented: "[Applicant] is my #1 of 7 joint company grade officers I rate and in the top 5% of all company grade officers that I have worked with. [Applicant] is an absolutely phenomenal logistics officer...Unlimited potential; promote to MAJ [major] immediately and send to resident ILE [Intermediate Level Education] now. A future Battalion Commander!" 10. His four military awards attest to his accomplishments and achievements (i.e., Defense Meritorious Service Medal, 26 September 2019; Meritorious Service Medal, 6 March 2020; Army Achievement Medal, 5 June 2020; and Army Commendation Medal, 26 June 2020). 11. The seven memorandums/letters of support attest to his service and performance since the incident, commending his exceptional talent, organizational knowledge, leadership, professionalism, and mentorship skills. They note he took responsibility for and learned from his mistake, and deserves a second chance. Since the incident, he completed Ranger School, Jumpmaster School, and received his master's degree in Business Administration. He has tremendous potential which is evident throughout his performance as shown in his officer evaluation reports, challenging assignments, diverse military and civilian training, and advanced education. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was partially warranted. He received NJP in Iraq for failing to obey lawful general order by wrongfully consuming alcohol, wrongfully consumed alcohol in the presence of subordinates and wrongfully allow subordinates to consume alcohol in violation of orders, and wrongfully engaging in inappropriate and unprofessional conduct with a vendor employee by sending her flirtatious text messages. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the letters of support, and his overall record. Board members felt since the Article 15 was neither untrue nor unjust, there was no reason to remove it from his record. However, Board members also felt given his overall military service, including his combat service, awards and decorations, solid OERs, and supporting statements, Board members voted to transfer the GOMOR to the restricted section of his OMPF/AMHRR. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the Article 15 (DA Form 2627), 31 March 2017, and the allied documents to the restricted section within his Military Human Resource Record (AMHRR). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing his Article 15 from his AMHRR. 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 ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative 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. 2. Army Regulation 27-10 (Military Justice), 11 May 2016, prescribed the policies and procedures pertaining to the administration of military justice and implemented the Manual for Courts-Martial. Chapter 3 (Nonjudicial Punishment) implemented and amplified Article 15 of the UCMJ and chapter XXVI of the Manual for Courts-Martial. a. Paragraph 3-4 (Personal Exercise of Discretion) stated a commander will personally exercise discretion in the nonjudicial punishment process by: (1) evaluating the case to determine whether proceedings under Article 15 should be initiated; (2) determining whether the Soldier committed the offense(s) where 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 (Setting Aside and Restoration) described setting side 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 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. 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) stated the following authorized maximum punishments may be imposed as nonjudicial punishment on commissioned officers by general officers: * admonition/reprimand * restriction for 60 days * forfeiture of 1/2 of 1 month's pay for 2 months 3. Army Regulation 600-8-29 (Officer Promotions), prescribes the officer promotion function of military human resources support operations. This regulation supports the objectives of the Active Component's officer promotion system, which include filling authorized billets with the best qualified officers. It also provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility. Additionally, it precludes promoting officers who are not eligible or become disqualified, thus providing an equitable system for all officers. a. Paragraph 1-13 (Failure to be Selected for Promotion) states an officer on the Active Duty List who has failed to be selected for promotion, to include major, a second time will be subject to discharge or release from active duty, retained on active duty until qualified for retirement if he or she is within 2 years of qualifying for retirement, or selectively continued. b. Paragraph 1-14 (Selective Continuation) states that subject to the needs of the Army, officers pending separation because of having twice failed to be selected for promotion to major may be selectively continued on active duty in their present grade. Selectively continued officers, if otherwise eligible, will continue to be considered for promotion until separation. c. Paragraph 2-12 (Post-board Screening) states a post-board screening will be conducted on officers selected for promotion to captain through colonel before the results of the Promotion Selection Board are forwarded to the Secretary of the Army. A post-board screening will include, but is not limited to, a review of information in official files maintained by U.S. Army Criminal Investigation Command, the Department of the Army Inspector General, the restricted folder of the AMHRR, and a query for suspension of favorable personnel actions. An officer with adverse or reportable information that might reasonably and materially affect a promotion recommendation may not meet exemplary conduct requirements for promotion and may be recommended for a delay in promotion and referred to a Promotion Review Board. 4. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. Paragraph 6-3 (Department of the Army Suitability Evaluation Board (DASEB) Process) states Soldiers who believe that unfavorable information filed in their AMHRR, in the form of a memorandum of reprimand, admonition, or censure, or records or proceeding pursuant to UCMJ, Article 15, have served their intended purpose, may submit an appeal in the case of UCMJ, Article 15, to request its transfer to the restricted portion of the AMHRR, in accordance with paragraph 7-2d(3). Such appeals must include evidence that: (1) The intended purpose has been served. (2) The Soldier has received at least one evaluation report since its imposition. (3) The transfer is in the best interest of the Army. (4) The Soldier's chain of command at the time of the imposition and/or imposing authority support the transfer in the form of a memorandum. b. Paragraph 7-1 (Appeal Authority) provides that the DASEB is the initial appeal authority and makes recommendations for removal, alteration, or transfer of unfavorable information entered in the AMHRR. This chapter sets forth the policies and procedures whereby a person may seek removal of unfavorable information from his or her AMHRR, or transfer of unfavorable information from the performance folder to the restricted folder of his or her AMHRR. c. Paragraph 7-2 (Policies and Standards) states an officer who directed filing of an administrative memorandum of reprimand, admonition, or censure in the AMHRR may request its revision, alteration, or removal if later investigation determines such information is untrue or unjust, in whole or in part. The basis for such determination must be provided to the DASEB in sufficient detail so as to justify the request. The officer who directed the filing of such a letter in the AMHRR may not initiate an appeal on the basis that the memorandum has served its intended purpose. However, a memorandum of support may be submitted with the recipient's appeal. (1) Appeals for Removal. This regulation applies to appeals for removal of memorandums of reprimand, admonition, or censure already filed in the recipient's AMHRR. (2) Appeals for Transfer. This regulation applies to appeals for transfer of memorandums of reprimand, admonition, or censure; and for transfer of records of proceedings under Article 15 of the UCMJ from the performance folder to the restricted folder of the recipient's AMHRR. (3) Appeals Involving Documents with Regulatory Appeal Authority. This regulation does not apply to documents that have their own regulatory appeal authority, such as evaluation reports or records of courts-martial. (4) Appeals for Article 15 Removal. The DASEB will not consider appeals to remove records of proceedings under Article 15 of the UCMJ from the AMHRR. The authority to adjudicate such claims rests with the ABCMR. 5. 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 ABCMR or other authorized agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005470 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1