IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220006910 APPLICANT REQUESTS: removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), 11 December 2017, from his Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENT(S) 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 Army Board for Correction of Military Records (ABCMR) Concerning (Applicant)), 1 August 2022 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 his command-initiated company-grade Article 15 proceedings against him in December 2017. He was able to make a statement on his behalf during the proceedings and his commander found him not guilty of all specifications. a. For some reason unbeknownst to him, his commander still checked the block directing filing the DA Form 2627 in the performance folder of his AMHRR. His understanding of the process is that a unit paralegal specialist must have entered the information into Military Justice Online, causing the DA Form 2627 to be unjustly filed in his AMHRR. b. Justice requires removal of the DA Form 2627 from his AMHRR. The findings of not guilty are supposed to be the end of nonjudicial punishment (NJP) proceedings. Although Army Regulation 27-10 (Military Justice) does not foresee this exact situation, other wording in the regulation is illustrative of this point. For instance, Army Regulation 27-10, paragraph 3-42 (Transfers of Punishments Wholly Set Aside, or Changes of Status), states:? (1) All DA Forms 2627 of commissioned officers and enlisted Soldiers filed in the AMHRR reflecting those punishments have been wholly set aside (see paragraph 3-28 (Setting Aside and Restoration)) will be removed from the Soldier's record. (2) The DA Form 2627 reflecting the original imposition of punishment, if filed in the AMHRR, unit NJP file, or unit personnel files will be destroyed. c. In his case, the punishment wasn't just set aside, he was never found guilty in the first place. Also, paragraph 3-17(k) states if, after evaluation of all pertinent matters, the imposing commander determines that NJP is not warranted, the Soldier will be notified that the proceedings have been terminated and all copies of the DA Form 2627 will be destroyed. In his case, punishment was never imposed. The proceedings were terminated. d. He has inquired with judge advocates who have informed him they have no way of removing the DA Form 2627 from his AHMRR. The information is technically entered correctly in Military Justice Online and nothing they do now will cause the DA Form 2627 to be removed. e. On the advice of counsel, he is submitting this request to the ABCMR rather than the Department of the Army Suitability Evaluation Board because he is not asking this record to just be moved to his restricted folder, but to be removed totally from his AMHRR. 3. Headquarters and Headquarters Company, 1st Armored Brigade Combat Team, 1st Infantry Division, Orders 022-804, 22 January 2016, promoted him to the rank/grade of sergeant/E-5 effective 1 February 2016. 4. On 1 December 2017, he received developmental counseling from his company executive officer for insubordinate conduct toward a commissioned officer. a. The Key Points of Discussion states he was to ensure completion of Government Purchase Card (GPC) approval on 1 December 2017 in preparation for the Joint Readiness Training Center mission before he was released for the day. He was in general technical improvement class for most of the day, so Specialist assumed the responsibility. As the applicant is the only GPC holder in the company, he is the only one able to sign the approval form, as he is aware. He was asked to come back to work and sign the form, but he replied: "what the f___ sir, what difference does it make if I sign it today or tomorrow." b. The Plan of Action states: "I am recommending you to the Chain of Command for punishment under the Uniform Code of Military Justice." c. The Session Closing shows the applicant marked that he agreed with the counseling and commented: "I completed the GPC approval form, but I forgot to sign it." 5. He was considered for NJP under the provisions of Article 15, UCMJ, on 11 December 2017 for being disrespectful toward a commissioned officer, then known by him to be a commissioned officer, by saying to him: "WTF [What the f___] Sir, what difference does it make if I sign it today or tomorrow," or words to that effect, on or about 29 November 2017, and having received a lawful command from a commissioned officer, then known to him to be a commissioned officer, to return to work and sign a GPC form, or words to that effect, on or about 29 November 2017, willfully disobeyed the same. a. Item 4a of the DA Form 2627 shows the applicant's commander, having considered all matters presented in an open hearing, made the following finding by placing his initials indicating "Not Guilty of All Specifications (line out all Specifications and sign below)." (Note: the specifications were not lined through). b. Item 4b shows the imposing commander directed filing the original DA Form 2627 in the performance folder of the applicant's AMHRR. c. Item 6 shows the following punishment was imposed: "Forfeiture of $622.00 pay, suspended, to be automatically remitted if not vacated on or before 11 June 2018; extra duty for 14 days; restriction to the limits of company area, dining/medical facility, and place of worship for 14 days." (Note: This portion of the form is not signed.) 6. A review of the applicant's AMHRR restricted folder shows the Article 15 Allied Documents, posted on 18 December 2017, consists of the DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 30 November 2017; DA Form 4856, 1 December 2017; and his Enlisted Record Brief, 1 December 2017. 7. Headquarters, 2nd Battalion, 27th Infantry Regiment, permanent Orders Number 252-001, 27 September 2018, awarded him the Army Good Conduct Medal (2nd Award) for the period 10 September 2015 to 9 September 2018. 8. He was honorably released from active duty on 7 April 2019 and transferred to a U.S. Army Reserve troop program unit. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 12c (Net Active Service This Period) – 6 years, 6 months, and 28 days * item 28 (Narrative Reason for Separation) – Completion of Required Active Service 9. He again enlisted in the Regular Army on 15 June 2020 for a period of 4 years.? 10. Headquarters, 16th Military Police Brigade, Order Number 355-029, 21 December 2021, promoted him to the rank/grade of staff sergeant/E-6 effective 1 January 2022. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicants petition and available military records, the Board determined there was sufficient evidence to support removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 11 December 2017, from his Army Military Human Resource Record (AMHRR). Evidence in the record show the applicant commander, having considered all matters presented in an open hearing, made the following finding by placing his initials indicating "Not Guilty of All Specifications. 2. Furthermore, the Board determined the applicant received his Army Good Conduct Medal during this period as well. The Board determined based on the evidence in the applicant’s record an injustice occurred. The Board determined since receiving the NJP, the applicant’s service record has been flawless, and he has been selected for advancement to the next rank and received an honorable discharge. Based on the preponderance of evidence the Board granted relief to remove the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 11 December 2017, from his AMHRR. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from his Army Military Human Resource Record (AMHRR) the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) dated 11 December 2017. 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. 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, United States, 2019, and the rules for courts-martial contained in the Manual for Courts-Martial. a. Paragraph 3-6a provides that a commander's decision whether to file a record of NJP in the performance folder of a Soldier's AMHRR is as important as the decision relating to imposition of the NJP itself. In making a filing determination, the imposing commander must carefully weigh 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 folder. 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 folder. b. Paragraph 3-18 (Formal Proceedings), subparagraph k (Action Terminating Proceedings), states if, after evaluation of all pertinent matters, the imposing commander determines that NJP is not warranted, the Soldier will be notified that the proceedings have been terminated and all copies of the DA Form 2627 will be destroyed. c. Paragraph 3-28 (Setting Aside and Restoration) states setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. If all findings are set aside, then the DA Form 2627 itself is set aside and removed from the Soldier's record. d. Paragraph 3-42 (Transfers of Punishments Wholly Set Aside, or Changes of Status), subparagraph b (Wholly Set Aside), states all DA Forms 2627 of commissioned officers and enlisted Soldiers filed in the AMHRR reflecting those punishments have been wholly set aside (see paragraph 3-28) will be removed from the Soldier's record. The DA Form 2627 reflecting the original imposition of punishment, if filed in the AMHRR, unit NJP file, or unit personnel files will be destroyed. e. Paragraph 3-43 contains guidance for transfer or removal of DA Forms 2627 from the AMHRR. Applications for removal of a DA Form 2627 from the AMHRR based on an error or injustice will be made to the ABCMR. There must be clear and compelling evidence to support removal of a properly completed, facially valid DA Form 2627 from a Soldier's record by the ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006910 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1