IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20220009927 APPLICANT REQUESTS: removal of a record of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), 18 August 2020, from her Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149, Application for Correction of Military Record * DA Form 2627, Record of Proceedings Under Article 15, UCMJ with allied documents * Punitive Reprimand * Telephone Screen shot of a text message * Enlisted Record Brief (ERB) FACTS: 1. The applicant states, in effect, she received an Article 15 two years ago that is affecting her ability to reclassify into another military occupational specialty. She contends that the Article 15 was not given to her due to a lack of integrity and the U.S. Army Human Resources Command (AHRC) will not allow her to reclassify or reenlist because they are unable to see the reason for which she received the Article 15. a. She further states that there were many injustices committed during the Article 15 process, including coaching the noncommissioned officers in the preparation of their statements, only having the counseling statement used to notify her that she would receive an Article 15 and not including the counseling statement she signed with her remarks. Her memorandum stated that she feared the NCO that counseled her and another NCO and that during her counseling her sexual orientation was discussed. b. She was also told that the Letter of Reprimand she received would be filed locally and not appear in her records; however, it was filed in the restricted area of her IPERMS. There may have not been an error, but it is imperative to her young career as a sergeant (SGT/E-5) to have the Article 15 removed from her records. The whole process was unfair, and she did not believe she was given the right information or guidance. This was her first time getting in trouble in her seven years of service. She tried to appeal this action because the counseling statement with her remarks suspiciously never made it into her packet. 2. At the time of her request the applicant was serving on active duty in the Regular Army as a SGT. 3. The record shows and the applicant provided an Article 15 packet which shows: a. The applicant was counseled by Master Sergeant (MSG/E-8) on 11 June 2020 for disrespect toward a Warrant Officer/NCO due to her aggressive demeanor and unprofessional behavior. Specifically, the applicant stated that she often disrespected Soldiers of all ranks without repercussion. She placed emphasis on going “unpunished” and her lack of professionalism had been documented in a Memorandum for Record. After being counselled, the applicant signed the form and indicated her agreement with the information contained on the form. This DA Form 4856, Developmental Counseling Form, does not contain remarks. The Article 15 packet included statements from a staff sergeant, sergeant first class, and MSG indicating that the applicant was rude and argumentative, lacked military bearing, and was disrespectful when addressing individuals senior to her. It appears that the applicant did not want to perform her assigned duties during the Army Physical Fitness Test because she had a lot going on and she made her displeasure known in a disrespectful tone. b. On 18 June 2020, the applicant was counseled for disrespecting an NCO. Again, the applicant signed the form and noted her agreement with the information contained on the counseling form. Her punishment included a Field Grade Article 15 and that she be flagged for adverse action. c. On 25 June 2020, the applicant’s battalion commander notified the applicant that he was considering whether she should be punished under Article15 of the UCMJ for being disrespectful to an NCO by stating “literally anyone can be at the turn around point, but whatever,” and in a separate incident by laughing, not standing at the position of parade rest, and interrupting a superior NCO by stating “go ahead and counsel me.” d. The applicant indicated with her initials that, after having been afforded the opportunity to consult with counsel, she elected: * not to demand trial by court-martial * to have a closed hearing * not to have someone speak on her behalf * to attach matters in defense, mitigation, and/or extenuation e. She provided a statement wherein she indicated that the statements written against her were missing pages and signatures and her comments had been misconstrued and misunderstood. She personally apologized to all involved and was asking for compassion because this was her first offense. She had worked very hard to become promotable and her actions were not a reflection of her true character. In a separate statement regarding her second counselling, the applicant indicated that she suffered from general anxiety disorder which caused her to become very emotional. She only got out of the parade rest position to wipe away the tears. She contends that one of the NCO’s brought up her sexual orientation during the counseling session and she became uncomfortable. f. Her matters included letters of support from the first sergeant, first lieutenant, previous executive officer and previous commander, who all attested to her excellent work ethic, leadership, and professionalism. g. On 8 July 2020, the imposing commander found her guilty of being disrespectful to an NCO by stating “literally anyone can be at the turn around point, but whatever,” and in a separate incident by laughing, not standing at the position of parade rest, and interrupting a superior NCO by stating “go ahead and counsel me.” Her punishment consisted of extra duty for 14 days and a written reprimand. h. The imposing commander ordered the Article 15 filed in the restricted portion of her official military personnel file. and advised the applicant of her right to appeal. The applicant elected not to appeal. 4. The applicant received a Letter of Reprimand on 16 September 2020 for being disrespectful in language and deportment on multiple occasions toward senior NCOs in the execution of their office. 5. The applicant has received three DA Forms 2166-9-1, Noncommissioned Officer Evaluation Reports, since being issued the Article 15 in question. These evaluations cover the period from 1 March 2020 through 10 September 2022 and show her overall performance “MET THE STANDARD” and her over potential was either “HIGHLY QUALIFIED or MOST QUALIFIED.” 6. A review of her records found that the Article 15 in question and allied documents are currently filed in the restricted section of her AMHRR. 7. The applicant provides: a. A telephone screen shot of a text message between her an SSG . The applicant is asking to be removed as an instructor for remedial physical training because she feels SSG has made it a hostile work environment. b. A DA Form 4856, 11 June 2020, which shows the applicant was counseled for being insubordinate to a warrant officer and an NCO by having an aggressive demeanor and exhibited unprofessional behavior. This form shows the applicant noted her agreement with the information contained on the form with her digital signature and she remarked that she never stated that she disrespected Soldiers of all ranks. She indicated that the NCO counselling her put her in an unprofessional position by bringing up her sexual orientation and using slang terms when referring to the situation. She felt cornered during the counselling which caused her to react the way she did. Lastly, she indicated that the counselling was not about a professional matter but was more about a personal matter between her and another NCO. 8. Regulatory guidance states the removal of records of NJP from military personnel files is appropriate if the commander who imposed the punishment, successor in command, superior authority wholly sets aside the punishment on the basis that evidence exists which demonstrates that the punishment resulted in a “clear injustice.” BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the counsel’s statement and 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 the applicant did not demonstrate by a preponderance of evidence that procedural error occurred that was prejudicial to the applicant. The Board noted that removal of an Article 15/ UMCJ is generally not warranted unless it is factually incorrect. The Board determined based on the evidence in the applicant’ record the incident did occur and the applicant acknowledged with her acceptance of the Article 15. The Board found insufficient evidence to remove the Article 15. Furthermore, there does not appear to be any evidence the contested record of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), 18 August 2020, from her Army Military Human Resource Record (AMHRR). was unjust or untrue or inappropriately filed in the applicant's AMHRR. Therefore, relief is denied. 2. The purpose of maintaining the Army Military Human Resource Record (AMHRR) is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. The Board agreed, there does not appear to be any evidence the contested Article 15 was unjust or untrue or inappropriately filed in the applicant's AMHRR. 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: 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. Army Regulation (AR) 27-10, Military Justice, prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial. a. A commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to NJP. 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 whom 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. b. The filing of NJP in the performance folder of the Soldiers AMHRR is a commander's decision. It is as important as the decision on whether to impose NJP punishment itself. In making a filing determination for a record of NJP which does not include a finding of guilty to a sex-related offense, 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 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, evidence of serious character deficiency, or substantial breach of military discipline. In such cases, the record should be filed in the performance folder. c. For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the AMHRR. The decision to file the original DA Form 2627 in the performance folder or restricted folder in 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. quests normally will not be considered until a minimum of one year has lapsed, and at least one nonacademic evaluation report has been received since imposition of the punishment. d. Removal of records of NJP from military personnel files is appropriate if the commander who imposed the punishment, successor in command, superior authority wholly sets aside the punishment on the basis that evidence exists which demonstrates that the punishment resulted in a “clear injustice.” e. 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. NJP 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 pursuant to UCMJ, Art. 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier’s records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. f. “Clear injustice” means that 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 n exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. 2. AR 600-37, Unfavorable Information, prescribes the policies and procedures regarding unfavorable information considered for inclusion in official personnel files. It states once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 3. AR 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 begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009927 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1