ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 January 2022 DOCKET NUMBER: AR20210006973 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) * a personal appearance hearing before the Board 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). FACTS: 1. The applicant did not file within the 3-year time frame 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. The DA Form 2627 shows him as the victim, yet he is the person who got into trouble. The defensive wounds on his arms and lack of damage to his hands shows who the real victim was. b. His wife's statement was a clear violation of the law by asking a leading question of the witness (his wife) and receiving no clear answer from his wife. That violation alone should have dismissed her statement. Additionally, the many statements where his wife states he is not abusive, then writes that he is. It can't be both ways. c. He has not had an issue regarding the nonjudicial punishment until the State Highway Patrol stated he is not favorably considered in the hiring process ever again because of it. He believes this happened in another state as well, but he was told there was nothing further to discuss about the matter. The record of nonjudicial punishment with an honorable discharge is not supposed to ruin one's life; yet, here he is over 11 years later with no career and support. 3. The applicant was serving in the Regular Army when he was listed as the offender on a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 21 May 2009. His offenses are listed as Simple Assault – Consummated by a Battery (Article 128, UCMJ; Domestic Violence (Article 134, UCMJ); and Wrongful Damaging of Government Property (Article 108, UCMJ). a. Item 4 (Action Taken) shows he received company-grade nonjudicial punishment (Article 15). b. Item 10a (Commander's Remarks) states the forfeiture was suspended; no action was taken. The staff judge advocate did not opine. (Note: no monetary penalty was listed.) 4. The DA Form 3875 (Military Police Report), 22 May 2009, shows him as the subject of the offenses of Simple Assault – Consummated by a Battery (Article 128, UCMJ; Domestic Violence (Article 134, UCMJ); and Wrongful Damaging of Government Property (Article 108, UCMJ). a. Item 3 (Evaluation) shows "Founded." b. Item 6 (Type of Weapon/Force) shows "Choking/Grappling." c. Section VII (Narrative) states the investigation on 21 May 2009 revealed the applicant and his spouse were involved in a verbal altercation which turned physical when the applicant pushed and choked his spouse, and damaged a garage wall during the incidents. The interview with the applicant's spouse revealed additional incidents of the applicant becoming physically abusive to her. On 26 May 2009, the staff judge advocate opined there was sufficient evidence to title the applicant with the offenses of assault consummated by a battery, domestic violence, and damage to Government property under the UCMJ. 5. He received nonjudicial punishment under the provisions of Article 15, UCMJ, on 31 August 2009 for unlawfully pushing and choking his spouse on or about 21 May 2009. In item 4b (I direct that this DA Form 2627 be filed in the), the commander marked "NA [Not Applicable] as Soldier was an E-4 or below at start of proceedings." The applicant chose not to appeal. His punishment consisted of reduction to private first class, forfeiture of $433.00, and 14 days of extra duty and restriction. 6. He was honorably discharged on 12 February 2010. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 4a (Grade, Rate, or Rank) – Private First Class * item 4b (Pay Grade) – E-3 * item 12c (Net Active Service This Period) – 6 years, 5 months, and 10 days * item 12i (Effective Date of Pay Grade) – 11 February 2009 * item 24 (Character of Service) – Honorable * item 28 (Narrative Reason for Separation) – Condition, Not a Disability 7. The applicant's AMHRR in the interactive Personnel Electronic Records Management System contains the DA Form 2627, 31 August 2009, under "Case File for Approved Separation." BOARD DISCUSSION: 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. Board members noted that based on the evidence of record, the applicant violated the UCMJ and subsequently accepted NJP for choking/pushing his spouse. As he was an E-4 or below at start of proceedings, the imposing commander did not direct its filing in his official records. He chose not to appeal. Board members noted that it is the imposing commander's function to determine issues of guilt or innocence under Article 15 of the UCMJ and that such determination will not be upset by the Board unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels but he elected not to do so. Board members noted that there is no evidence of record and he provides none to show the Article 15 is untrue or unjust. In order to remove a document from his official records, there must be clear and convincing evidence showing the document is untrue or unjust. Board members did not find any, and voted to deny relief. 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: 1 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. 2. 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. 1/14/2022 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. 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 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. 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. 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 company grade officers for enlisted members: * admonition/reprimand * extra duty and restriction for 30 days * reduction of one grade * forfeiture of 7 days of pay 4. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities for the preparation, reporting, use, retention, and disposition of Department of the Army forms and documents related to law enforcement activities. It implements Federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. a. Paragraph 3-6a (Amendment of Records) states an amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that actually occurred. Requests to amend reports will be granted only if the individual submits new, relevant and material facts that are determined to warrant their inclusion in or revision of the police report. Requests to delete a person's name from the title block will be granted only if it is determined that there is not probable cause to believe that the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether or not subsequent judicial, nonjudicial, or administrative action is taken against the individual. b. Requests to amend records of the U.S. Army Crime Investigation Division may be submitted to the Commander, U.S. Army Criminal Investigation Command, U.S. Army Crime Records Center, 27130 Telegraph Road, Quantico, VA 22134, with supporting evidence. 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. The Required Document List represents current active forms and documents required for filing in the AMHRR. Documents titled "Case Files for Approved Separations" must include the documents listed in Army Regulation 635-8 (Separation Processing and Document), paragraph 7-3, and any additional documents that support the separation action (adverse action, medical, administrative, etc.). //NOTHING FOLLOWS//