IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220003360 APPLICANT REQUESTS: removal of the Article 15, Uniformed Code of Military Justice (UCMJ) from his military file. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 638 (Recommendation for Award) * DA Form 2166-9-2 (NCO Evaluation Report (SSG-1SG/MSG)) * 3rd Transportation Brigade (Expeditionary) memorandum FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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, in effect, he believes he was unjustly given the Article 15 for being a strong noncommissioned officer and setting standards and discipline as the unit’s first sergeant (1SG) during deployment. Also, the Article 15 needs to be removed due to only receiving a verbal counseling not to call soldiers “fucker.” 3. The applicant provides: a. DA Form 638, dated 18 January 2021, which shows he was recommended for an Army Commendation Medal (ARCOM) for the period of 10 August 2020 through 28 April 2021. The recommendation was approved and the applicant was awarded the ARCOM, permanent order number 050-030, dated 25 February 2021. b. DA Form 2166-9-2, covering the period from 22 January 2020 thru 22 January 2021, reflects as the Detachment Sergeant, he met standard and was rated as “highly qualified.” c. 3rd Transportation Brigade (Expeditionary) memorandum, dated 12 July 2021, written the commander, Colonel (unsigned), Subject: Request Removal of Headquarters Department of the Army (HQDA) Flag, which states: (1) On 21 April 2021, [applicant] was flagged for Commander’s Investigation. He was under investigation due to an anonymous EO complaint filed while mobilized under the 1st Theater Sustainment Command (1st TSC). (2) The outcome of the investigation found that there was insufficient evidence to support complaint. The case is closed favorably and [applicant’s] case was lifted 25 May 2021. As a result of the investigation, [Name] received an oral reprimand from the Battalion Commander. 4. A review of the applicant’s service record shows: a. He enlisted in the U.S. Army Reserve on an unspecified date, and later entered active duty on 27 July 2009 according to his DD Form 214 (Certificate of Release or Discharge from Active Duty). b. On 24 May 2021, he accepted nonjudicial punishment for violating a lawful regulation, paragraph 6-2, Army Regulation 600-20, by creating a hostile work environment to wit: addressing junior soldiers as “fu**er” instead of their name and rank. His punishment consisted of an oral reprimand, written reprimand. c. DD Form 214 shows he was honorably retired on 30 June 2022, under the provisions of Army Regulation (AR) 635-200. He served 12 years, 11 months, and 4 days of net service this period; 7 years, 5 months, and 2 days of total prior active service; and, 5 years, 2 months, and 20 days of total prior inactive service. Item 18 (Remarks) show he served in an imminent danger pay area, Iraq, from 1 April 2011 through 6 June 2011. 5. AR) 600-20 (Army Command Policy) prescribes the policy and responsibility of command, which include the Well-being of the force, military and personal discipline and conduct, the Army Equal Opportunity Program, prevention of sexual harassment, and the Army Sexual Assault Prevention and Response Program. 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. The evidence of record shows the applicant received NJP for creating a hostile work environment. Although he provides an award and an evaluation report which show he has performed well in his duties, this evidence is insufficient to show the Article 15 was in error or unjust. Regulatory guidance prescribes that clear injustice does not include the fact that the Soldier's performance of service has been exemplary after the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. Regulatory guidance states that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority, such as this Board. Based on the preponderance of the evidence, the Board determined the contested Article 15 is neither in error nor unjust. 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. Title 10, United States 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 (AR) 600-20 (Army Command Policy) prescribes the policy and responsibility of command, which include the Well-being of the force, military and personal discipline and conduct, the Army Equal Opportunity Program, prevention of sexual harassment, and the Army Sexual Assault Prevention and Response Program. 3. 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 Army Military Human Resource Record (AMHRR). a. Paragraph 6-2e states, the Department of the Army Suitability Evaluation Board (DASEB) makes determinations upon appeal of unfavorable information filed in a Soldier’s AMHRR. The DASEB may determine to revise, alter, or remove such unfavorable information if it is determined to be untrue or unjust, in whole or in part (see chap 7). b. Paragraph 6-2f states, the DASEB makes determinations, upon appeal, on requests to transfer unfavorable information from the performance to the restricted portion of the AMHRR (see chap 7). The DASEB may recommend the transfer of those administrative memoranda of reprimand when such transfer would be in the best interest of the Army. Transfer of such memoranda is further subject to the stipulations stated in paragraph 6–1d, paragraph 6–1e, and chapter 7. c. Paragraph 7 states, 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 file to the restricted file of his or her AMHRR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003360 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1