IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220003384 APPLICANT REQUESTS: * removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 24 February 2020, from his Army Military Human Resource Record (AMHRR) * alternatively, transfer of the DA Form 2627 to the restricted folder of his 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) * DA Form 2627, 24 February 2020 * Army Regulation 27-10 (Military Justice), 20 November 2020, Excerpt * UCMJ Article 43 (Statute of Limitations) Excerpt FACTS: 1. The applicant states: a. The offenses cited in the DA Form 2627 occurred in or about March-April 2016, 4 years prior to his receipt of nonjudicial punishment. Article 43 of the UCMJ and Army Regulation 27-10 both state the statute of limitations for nonjudicial punishment under Article 15 is 2 years. He is not objecting to the offenses; however, he believes the policies and procedures prescribed within Army regulations should be followed to the letter. b. As a result of this injustice, his sequence number on the Order of Merit List decreased from 968 to 2043 out of 2054. Based on his records, he believes he is very competitive for promotion and he should have been promoted this year without this injustice. He plans to continue his service as long as possible or upon reaching his current retention control point. 2. U.S. Army Human Resources Command Order Number 266-11, 23 September 2015, promoted him to the rank/grade of sergeant first class/E-7 effective 1 October 2015. 3. The 3rd Battalion, 10th Special Forces Group (Airborne), memorandum (Appointment as Investigating Officer to Conduct an Investigation into the Alleged Adultery and Resultant Child Paternity Involving (Applicant)), 5 October 2019, from the battalion commander appointed an investigating officer to conduct an administrative investigation pursuant to Army Regulation 15-6 (Procedures for Administrative Investigation and Board of Officers) into the facts and circumstances of the alleged adultery and resultant child paternity involving the applicant in the. 4. The 3rd Battalion, 10th Special Forces Group (Airborne), memorandum (Army Regulation 15-6 Investigation Findings and Recommendations for the Alleged Adultery and Resultant Paternity Involving (Applicant)), 7 November 2019, from the investigating officer states: a. By a preponderance of the evidence, the applicant had an extramarital sexual relationship with in the. The applicant is the father of 2-year-old, the daughter of. The applicant was aware that Ms. was pregnant prior to leaving the. b. He recommends imposition of field-grade nonjudicial punishment under Article 15, UCMJ, to the applicant for violating Article 134 (General Article), UCMJ, for adultery; issuance of a general officer memorandum of reprimand, and revocation of his Special Forces Tab. 5. The 2nd Battalion, 10th Special Forces Group (Airborne), memorandum (Legal Review of Army Regulation 15-6 Investigation into the Alleged Adultery and Resultant Child Paternity Involving (Applicant)), 13 November 2019, from the battalion judge advocate states: a. The investigating proceedings comply with legal requirements, including the requirement established in the appointing memorandum. b. There are no substantial errors in the investigation that would affect the proceedings. c. The findings of the investigation are supported by a greater weight of evidence than supports a contrary conclusion. d. The recommendations are consistent with the findings. 6. He accepted nonjudicial punishment on 24 February 2020. a. The DA Form 2627 lists the following misconduct: (1) in that he, a married man, wrongfully had sexual intercourse with Ms., a woman not his wife, at or near a, between on or about 11 March 2016 and on or about 21 April 2016, an act which resulted in the birth of (2) in that he wrongfully used his U.S. Government-issued Passport at or near on or about 18 March 2016, then well knowing the use to be unauthorized; and (3) in that he violated a lawful general order at or near, to wit: Army Regulation 380-67 (Personnel Security Program), paragraph 9-4 (Individual Responsibility), by failing to promptly report to his security office a close and continuous relationship with a foreign national, between on or about 16 March 2016 and on or about 30 April 2016. b. His battalion commander directed filing the original DA Form 2627 in the performance folder of his AMHRR. c. His punishment consisted of extra duty for 45 days and an oral reprimand. 7. A review of his AMHRR reveals the DA Form 2627 is filed in the performance folder. 8. His seven DA Forms 2166-9-2 (Noncommissioned Officer Evaluation Report) covering the periods 9 September 2015 through 28 February 2022 show: a. his raters consistently rated his overall performance as "Far Exceeded Standard" and "Exceeded Standard"; and b. his senior raters consistently rated overall potential as "Highly Qualified" and provided positive comments about his performance, potential, and recommendations for promotion. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The governing regulation provides that nonjudicial punishment may not be imposed for offenses that were committed more than 2 years before the date of imposition. The Board agreed the offense exceeded the 2 year limitation. The Board determined there is sufficient evidence to grant relief and remove the DA Form 2627 dated 24 February 2020 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 the DA Form 2627 dated 24 February 2020 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 Army Board for Correction of Military Records (ABCMR). 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. 2. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states investigating officers may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 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 Article 15, UCMJ, should be initiated; (2) determining whether the Soldier committed the offense(s) where Article 15, UCMJ, 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 3-12 (Statute of Limitations) states nonjudicial punishment may not be imposed for offenses that were committed more than 2 years before the date of imposition. Computation of this 2-year limitation is in accordance with Article 43, UCMJ. The statute of limitations does not run when the Soldier concerned is absent without authority, fleeing from injustice, outside the territory where the United States has authority to apprehend, in the custody of civil authorities, or in the hands of the enemy. 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, UCMJ. 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. 4. Army Regulation 380-67 (Personnel Security Program) establishes policies and procedures to ensure that acceptance and retention of personnel in the Armed Forces and U.S. Army, acceptance and retention of civilian employees in the Department of Defense and Department of the Army, and granting members of the Armed Forces, Army, Department of the Army and Department of Defense civilian employees, Department of the Army and Department of Defense contractors, and other affiliated persons access to classified information and assignment to sensitive positions are clearly consistent with the interests of national security. Paragraph 9-4 (Individual Responsibility) states individuals must familiarize themselves with pertinent security regulations that pertain to their assigned duties. Further, individuals must be aware of the standards of conduct required of persons holding positions of trust. In this connection, individuals must recognize and avoid the kind of personal behavior that would result in rendering one ineligible for continued assignment in a position of trust. 5. 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 2-2 (Assistant Secretary of the Army (Manpower and Reserve Affairs)) states the Department of the Army Suitability and Evaluation Board will transfer records of nonjudicial punishment (proceedings pursuant to Article 15, UCMJ) that are determined upon appeal to have served their intended purpose from the performance folder to the restricted folder of the AMHRR when such transfer would be in the best interest of the Army. b. Paragraph 7-2a(4) (Appeals for Article 15 Removal) states the Department of the Army Suitability and Evaluation Board will not consider appeals to remove records of proceedings under Article 15, UCMJ, from the AMHRR. The authority to adjudicate such claims rests with the ABCMR. c. Paragraph 7-2d (Burden of Proof and Level of Evidence Required) states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been pursuant to an objective decision by a competent authority. For removals, there is no time restriction for submitting an appeal for removal of unfavorable information from the AMHRR. The recipient has the burden to proof to show, by clear and convincing evidence, that the document is either untrue or unjust, in whole or in part. Evidence submitted in support of the appeal may include but is not limited to an official investigation showing the initial investigation was untrue or unjust, decisions made by an authority above the imposing authority overturning the basis for the adverse documents, notarized witness statements, historical records, official documents, and/or legal opinions. 6. 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. Paragraph 3-6 (Authority for Filing or Removing Documents in the AMHRR Folders) 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. 7. Manual for Courts-Martial United States, Section 843, Article 43 (Statute of Limitations), subparagraph 3, states a person charged with an offense is not liable to be punished if the offense was committed more than 2 years before imposition of the punishment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003384 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1