IN THE CASE OF: BOARD DATE: 31 January 2023 DOCKET NUMBER: AR20220007483 APPLICANT REQUESTS: * removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), 25 February 2021, from his Army Military Human Resource Record (AMHRR) * restoration of his rank to staff sergeant (SSG)/E-6 with a date of rank of 1 January 2014 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 for Record (Character Statement for Applicant), 1 March 2020 * Letter, undated * Recruiting and Retention Battalion, North Carolina Army National Guard (NCARNG), Memorandum (Commanders Reprisal Prevention Plan), 30 June 2020 * DA Form 4856 (Developmental Counseling Form), 6 July 2020 * Recruiting and Retention Battalion, NCARNG, Memorandum (Notification of Involuntary Release from Full-Time National Guard Duty), 2 July 2020 * Recruiting and Retention Battalion, NCARNG, Memorandum (Response to Notification of Involuntary Release from Full-Time National Guard Duty), 6 July 2020 * DA Form 2627, 25 February 2021 (incomplete) * Certificate of Death, 18 March 2021 * Trial Defense Service, 113th Sustainment Brigade, Memorandum (Article 15 Appeal – (Applicant)), 18 May 2021, with enclosures – * United States v. Fleig, 16 December 1966 * Joint Force Headquarters – North Carolina, North Carolina National Guard, Memorandum (Sergeant First Class (SFC) Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) Findings), 4 November 2018 * Self-authored Memorandum (Personal Statement), 18 May 2021, with enclosures – * Enclosure 1 – DA Form 2823 (Sworn Statement), Sergeant (SGT) 17 August 2020 * Enclosure 2 – DA Form 2823, SGT 6 March 2021 * Enclosure 3 – DA Form 2823, Corporal (CPL) 12 April 2021 * Enclosure 4 – Text Screenshot * Enclosure 5 – DA Form 2166-9-2 (Noncommissioned Officer (NCO) Evaluation Report (SSG-1SG/MSG) covering the period 1 April 2019 through 31 July 2020 * DA Form 2823, SSG 3 February 2022 * DA Form 2823, SGT 10 February 2022 * two Air Force Forms 102 (Inspector General (IG) Personal and Fraud, Waste, and Abuse Complaint Registration), 27 February 2022 and 2 March 2022 * two DA Forms 1559 (IG Action Request), 27 February 2022 and 2 March 2022 * Consent for Release of Personal Record by Executive Agencies, 28 February 2022 * Self-authored Email (IG Action Request Form), 28 February 2022 * National Guard Bureau Letter to Congressional Representative, 22 March 2022 * Congressional Representative Letter, 8 April 2022 * Resignation Letter for SGT undated 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 Record (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 he received nonjudicial punishment (NJP) during his service in the NCARNG. He believes this process was full of injustices and violations of the UCMJ. He would like all punitive actions removed from his permanent record and restoration of his rank to SSG/E-6 with a date of rank of 1 January 2014. a. The corrections should be made because Colonel (COL) made comments, stating that any individual who has charges or allegations against him/her will receive UCMJ punishment at the mid-year training. This statement outlined a clear violation of Article 32, UCMJ, in that COL held a bias and preconceived determination of guilt, thereby removing the ability for a fair and impartial hearing. b. Additionally, Major (MAJ) lied by assuming information instead of requesting more evidence. The DA Form 2627 is incorrect in stating the event happened "at or near ." His current address is in , which is approximately away. This is another violation of Article 32, UCMJ. 3. On 1 March 2020, SFC rendered a character statement on behalf of the applicant wherein he stated he worked with the applicant daily for a period of 12 months. He further stated: a. The applicant's duties included interacting with up to 200 newly assigned paratroopers each week. He was responsible for the reception, housing, training, and care of those paratroopers. Never once was he given a reason to question or doubt the applicant's professionalism or integrity. b. The applicant is a considerate, respectful, and courteous NCO who is driven to succeed. He is honest, trustworthy, and professional. He would consistently pursue the path of what was right over taking the easy wrong. He knows how to and sets the boundaries of work and friendships while ensuring others know it. This was never more evident than an instance where a young paratrooper made advances toward the applicant. He corrected the Soldier, letting her know that not only was he married, but he was an NCO charged with her care. 4. On an unknown date, SFC rendered a character statement on behalf of the applicant wherein he stated he worked closely with and spent numerus hours with the applicant while at the Professional Education Center. During the course, the applicant was extremely professional and dedicated to their craft as well as being a Soldier. Their relationship grew exponentially as they learned, worked, and lived together. He further stated: a. To add to the applicant's character, his ability to be a Soldier, and to live the Army Values, an event occurred at the Professional Education Center that should be mentioned. The applicant escorted an intoxicated female Soldier to the front desk of the barracks, ensuring she was properly taken care of. His actions were based on the fact that the female was inviting multiple male Soldiers to her room. b. He feels the applicant's actions have always been in the best interest of the Army and the NCARNG. 5. The Recruiting and Retention Battalion, NCARNG, memorandum (Commanders Reprisal Prevention Plan), 30 June 2020, reflects the commander's intent to establish and implement a plan to protect the complainant, any named witness, and the alleged discriminating official from acts of reprisal, and states:? a. Service members have a right to present their complaint to their leaders or supervisors without fear or intimidation and harassment of reprisal. b. Reprisal is taking or threatening to take an unfavorable personnel action, withholding or threatening to withhold a favorable personnel action, or any act of retaliation, against a military member for making or participating in protected communication. There are three forms of reprisal: threatening, intimidation, and harassment. Immediately report the incidents to your chain of command or the State Equal Employment Manager. c. As the commander, he will ensure the command support of a complete, expeditious, and unbiased investigation in good faith in attempting to resolve the complaint; and the need to treat all parties in a professional manner, both during and following the conduct of the investigation. The inquiry officer or investigating officer will treat all individuals he/she interviews professionally and confidentially. d. The memorandum is signed by the commander on 6 July 2020. There is no signature from the "individual concerned" or any indication the applicant was briefed on the Commander's Reprisal Prevention Plan. 6. The Recruiting and Retention Battalion, NCARNG, memorandum from the commander (Notification of Involuntary Release form Full-Time National Guard Duty), 2 July 2020, notified the applicant that he was recommending the applicant's involuntarily release from Full-Time National Guard Duty for misconduct under the provisions of National Guard Regulation 600-5 (The Active Guard Reserve Program, Title 32, Full-Time National Guard Duty Management), 21 September 2015, paragraph 6-5. The reason for the proposed action is the applicant's violations of Department of Defense Instruction (DODI) 1303.44 (Protecting Against Inappropriate Relations During Recruiting and Entry-Level Training. a. Specifically: (1) attempting to develop a personal relationship with Private First Class a former recruit, now Soldier, covered under the protection of DODI 1303.44, enclosure 3, paragraph 1.a (Prohibited Activities); (2) attempting to develop and conduct a personal relationship via social networking in violation of DODI 1303.44, enclosure 3, paragraph 1a(1)(a); and (3) misusing Government property by conducting personal communications on an official social media account in violation of the Joint Ethics rules. b. Further inquiry revealed the applicant's communication was rife with sexual overtones, demonstrating a further violation of DODI 1303.44 and by suggesting Private First Class should have an "onlyfans" site – a website where individuals can solicit nude photographs of themselves for financial gain – further demonstrating his lack of integrity, gross moral turpitude, and fitness to serve. c. The commander signed the memorandum, but the applicant did not. 7. The Recruiting and Retention Battalion, NCARNG, memorandum (Response to Notification of Involuntary Release from Full-Time National Guard Duty), 6 July 2020, does not reflect any elections. Neither the applicant nor his defense counsel signed the memorandum. 8. On 6 July 2020, the applicant was counseled regarding his notification of separation proceedings and associated documents. The DA Form 4856 notes: a. He was provided his official notification of separation proceedings and acknowledgement of receipt of all documents related to the action. b. He read the notification of separation memorandum and the response to the notification of separation memorandum. c. He was provided the contact information for the North Carolina National Guard Legal Assistance Program. d. He was provided the contact information for the NCARNG Recruiting and Retention Battalion Chaplain. e. The applicant did not initial and date any portion of the Plan of Action. f. Neither the applicant nor his commander (the counselor) signed or dated the DA Form 4856. 9. There is no documentation of involuntary separation action in the applicant's service record. The only documentation has been provided by the applicant. 10. There is no evidence of an Army Regulation 15-6 investigation provided by the applicant or in his service record. 11. On 17 August 2020, SGT rendered a sworn statement (included as part of the applicant's appeal of NJP under Article 15, UCMJ) wherein he stated: a. During two separate team meetings, MSG first told them: "You need to talk to everyone on social media, talk to RSP [Recruit Sustainment Program] soldiers[;] everyone is either a lead or knows one." During the second team meeting, they were told by MSG "you can either do this job honestly or successfully." He had been told multiple times during his tenure as a recruiter that you can "play the gray," which meant that in terms of gaining an enlistment, it is acceptable to have a lack of integrity as long as you are not caught or it does not raise questions. b. As recruiters, they were expected to contact potential applicants at any time, to always be on Facebook or Instagram to further expand or reach into recruiting pools. The recruiting team is a toxic environment. The only NCO who attempted to help train and mentor him was the applicant and he was a newly badged recruiter. MSG continuously referred to the recruiters on their team as "spark plugs and can be easily replaced." 12. On 25 February 2021, the applicant accepted NJP. His DA Form 2627 shows he was found guilty of violating one specification of Article 92 (Dereliction of Duty), UCMJ, when he was derelict in the performance of his duties in that he willfully failed to adhere to DODI 1303.44, enclosure 3, paragraph 1a, by attempting to develop a relationship with a trainee within 6 months of the trainee completing entry-level training. The form further states: a. In an open hearing, the commander found the applicant guilty of some of the specifications. b. The applicant was reduced in rank from SSG/E-6 to SGT/E-5. c. The applicant elected to appeal. d. A judge advocate reviewed the proceedings and determined they were conducted pursuant to law and regulations. The finding of guilty and punishment were appropriate. e. The applicant's next superior authority denied his appeal. 13. On 6 March 2021, SGT rendered another sworn statement (included as part of the applicant's Article 15, UCMJ, appeal) wherein he stated: a. MSG was talking to the male recruiters and began pointing out their characteristics. Some were young, others had tattoos and pretty hair, another was muscular. They were told to "…use our strengths in recruiting and even flirt." b. Upon his return from recruiting school, his wife had undergone surgery due to physical complications after the birth of their daughter. He would need to take care of his wife as a result of her surgery and limitations. When he told MSG about these limitations, MSG told him he "should lay a sandwich next to her, kiss her on the forehead, and head to the office." His daughter was nearing 1 years old and his son was 3 years old. When he told MSG he needed to be home to help his wife, MSG allowed him to conduct calls from home because he was ahead of mission. c. As a recruiter, both he and the applicant used each other as confidants. Before any event or after any interview they would talk to each other and run through the highlights and possible concerns, or if they thought the applicant was workable, how they would work him/her. At no point did the applicant make him feel uncomfortable or do anything for him to question his character or integrity. d. He believed MSG did not want him on his recruiting team and was going to use any means possible to either relieve him of his position or convince him to resign. MSG talked to the applicant and another NCO about him and informed both of them that MSG had made his job very difficult. 14. The 113th Sustainment Brigade Trial Defense Service memorandum (Article 15 Appeal – (Applicant)), 18 May 2021, requested set aside of the applicant's NJP under Article 15, UMCJ, and restoration of his rank. The defense counsel stated: a. First, the specification for which the applicant was found guilty is fatally deficient because it fails to allege an offense. Second, the specification consists of an improper end-around to punish a Soldier for violating a nonpunitive regulation. This end-around is ripe for abuse as virtually every party involved with this Article 15, UCMJ, could legitimately receive NJP if this standard were consistently used. b. The specification for which the applicant is found guilty is fatally deficient because it fails to allege an offense. This is not a subjective judgment call but a concrete matter of law. Rule for Court Martial 307(c)(4) requires specifications to allege every element of a charged offense expressly or by necessary implication and that it includes sufficient specificity and words to indicate criminality. The sole specification in which the applicant was found guilty fails to meet this requirement. c. The applicant was found guilty of Article 92, UCMJ, for dereliction of duty for violating DODI 1303.44, enclosure 3, paragraph 1, for "attempting to develop a relationship with a trainee within 6 months of them [sic] completing entry-level training." The problem is that DODI 1303.44, enclosure 3, paragraph 1, does not provide a blanket prohibition against attempting to develop a relationship with a trainee. It only prohibits attempting to develop a personal, intimate, or sexual relationship. This language, however, which is necessary to indicate criminality, was left out of the charge. This fact was brought to the imposing commander and his legal advisor at the hearing, but they both ignored it. This is clearly a fatal flaw. d. United States v. 16 U.S.C.M.A. 444 (1966), is directly on point. It is an old case from 1966 because this deficiency is so basic. In this case, the accused was charged with being the driver of a vehicle at the time of a collision and wrongfully and unlawfully leaving the scene of the collision without making his identity known. The court ruled that because the specification, either expressly or by fair implication, failed to state that the accused's vehicle was involved in the collision; the specification did not state an offense and was therefore fatally deficient. The court ruled that a specification is required to allege every essential element of the offense charged or it is fatally defective. It would not be a crime for a vehicle not involved in a collision to leave the scene at the time of a collision, so the specification left out an essential element. In the applicant's case, there are many types of relationships that he would be permitted to develop with a trainee, such as a professional one, which would fit the specification but not constitute an offense. Therefore, an essential element was left out of the specification and it is fatally insufficient. In 2011, United States v. 69 MJ 669 (2010), overturned a multitude of Article 134, UCMJ, offenses because they failed to state the terminal element. In addition, the Government's standard to meet this requirement is much higher if the issue is brought to their attention before the appellate process, which it was in this case. Additionally, the charge alleges that the offense occurred at or near, when the applicant was nowhere near, at the time of the offense. e. The applicant's NJP under Article 15, UCMJ, should be set aside and his rank should be restored. Ten out of 10 military judges would dismiss this case because it is so clear cut. If authorized it, the applicant would have turned this action down and gone to court-martial because the charges are so obviously deficient. f. Second, the specification consists of an improper end-around to punish a Soldier for violating a nonpunitive regulation. Not all provisions in general orders or regulations can be enforced under Article 92. There are regulations that do not prohibit conduct but instead only supply general guidelines. It says so in the Manual for Courts-Martial itself. The way we distinguish between punitive regulations that can be charged and general guidelines that cannot is easy. The regulations themselves explicitly tell you when they are punitive. For example, Army Regulation 600-20 (Command Policy), paragraph 4-16, states: "Violations of paragraphs 4-14b, 4-14c, and 4-15 may be punished under the UCMJ." This means that paragraphs 4-1 through 4-13 and paragraph 4-14a cannot be punished under the UCMJ. g. The DODI the applicant was charged with violating is nonpunitive. No such 1 language exists authorizing a commander to punish a Soldier for violating the DODI under the I UCMJ. What the specification for which he was found guilty does is slap on dereliction of duty language to get around that restriction. If this obvious end-around were authorized, it would effectively render meaningless the distinction between punitive and nonpunitive regulations and allow Soldiers to receive punitive action for allegedly violating any regulation or policy whether it was punitive or nonpunitive. h. There is a strong basis for why the distinction between punitive and nonpunitive exists. One reason is because Soldiers cannot be expected to know every single regulation or policy that exists. A second reason is that a lot of regulations are general guidelines that lack concrete boundaries. If all regulations are considered punitive, then virtually everyone is guilty of an Article 92, UCMJ, violation, including most people involved with this Article 15, UCMJ, process. i. Army Regulation 600-100 (Army Leadership) states leaders should treat their subordinates with dignity, respect, fairness, and consistency to build discipline, while stimulating confidence, enthusiasm, and trust, and build cohesive teams. This portion of the regulation was explicitly cited by COL during the applicant's Army Regulation 15-6 investigation. Normally, a Soldier could not be subjected to UCMJ action based on this regulation because it is nonpunitive. It contains general guidelines and aspirational language. However, if the applicant's standard is used, COL and the Recruiting and Retention Battalion violated it more than once. j. The applicant's second reading occurred on 7 March 2021. His father was in the hospital that day with a terminal illness and his life expectancy at that time was approximately 24-48 hours. After the hearing, COL told the applicant that he understood the difficulty of the situation, that the process had taken an extremely long time, and acknowledged the toll it was taking on the applicant. He stated as a result he would ensure he would get the results of the Article 15, UCMJ, the next week. He assured the applicant that it would not take weeks or months like the rest of the process had taken. There were no results until 13 May 2021, more than 2 months later. k. If nonpunitive sections of Army Regulation 600-100 can be charged as dereliction of duty, the following is a valid charge: "In that you, as a member of the North Carolina Army National Guard, performing duty pursuant to Title 32, U.S.C. [U.S. Code], who knew your duties, at or near, on or between 7 March 2021 and 13 May 2021, were derelict in the performance of those duties in that you failed to adhere to AR [Army Regulation] 600-100, para[graph] 1-11, by failing to treat your subordinate with dignity and respect, and to stimulate confidence enthusiasm and trust, and to build a cohesive team by promising to give a subordinate Soldier, [Applicant], whose father was actively dying during the second reading, the results of his NJP within the week but then taking over two months to do." l. A similar charge could be levied based on the applicant's Active Guard Reserve removal. His Active Guard Reserve removal was initiated on 2 July 2020. However, the leadership inquiry into the misconduct that removal was based upon was not assigned until 6 days later. The actual investigation was not appointed for another 3 months and it was not completed for another 3 months after that. Once again, if nonpunitive regulations can be charged as dereliction of duty, this could be charged as a failure to treat subordinates fairly, with dignity and respect, instilling confidence, etc., by initiating Active Guard Reserve removal against a subordinate Soldier for misconduct on 2 July 2020 that was not finished being investigated until 6 January 2021. m. Another example is that Army Regulation 15-6 states in three separate places that an investigating officer should use a DA Form 3881 to memorialize the explanation of the suspect's decision. There is not one in the investigation. He questions whether the investigating officer should be given NJP under Article 15, UMCJ, for violating nonpunitive portions of Army Regulation 15-6. He does not believe it is authorized, but according to this standard, he could be. n. Yet another example could be this appeal itself. According to Army Regulation 27-10 (Military Justice), an appeal is normally completed within 5 days. If you are considering this appeal, then it did not make that suspense. This failure could be charged as a nonpunitive Army Regulation 27-10 violation if the applicant's standard is utilized. o. What also does not build enthusiasm and cohesive teams is when a chain of command charge has vast disparity in treatment. While ultimately found not guilty, the applicant was charged with rendering a false official statement at a brigade-level Article 15, UCMJ, hearing for providing an ancillary detail. Another NCO in the Recruiting and Retention Battalion, according to a formal Army Regulation 15-6 investigation, tried to frame another Soldier by convincing people to make false allegations against a fellow recruiter and all she faced was a promotion. The command did not initiate an investigation, an inquiry, or bother flagging her. They just disregarded their own investigation and she was promoted a few months later. p. To be clear, the argument is not that all these parties should receive NJP. None of these parties should. Normally they could not receive NJP because these alleged violations only involve nonpunitive regulations that the drafters never intended to be subjected to the UCMJ. However, if this safeguard is removed using dereliction of duty end-arounds; nobody is safe and the process is ripe for abuse. 15. On 12 April 2021, CPL rendered a sworn statement (included as part of the applicant's Article 15, UCMJ, appeal) wherein he stated they had a meeting during lunch during drill weekend. All recruiters and MSG were present during that meeting. The applicant voiced his concern regarding late work hours, which included phone calls, texts, and working on social media. The applicant asked MSG if these sorts of actions could wait until the next day. MSG brushed off the applicant's concerns. Other recruiters agreed that the issue was stressful and it seemed unprofessional to communicate with leads, applicants, and enlistees during the late hours of the day. 16. On 18 May 2021, the applicant rendered a personal statement to his Article 15, UCMJ, appellant authority. He stated he is addressing additional issues he believes are relevant to his appeal and further stated: a. He has additional evidence which displaces the environment in which his alleged offenses occurred. There was a lot of pressure to engage and even flirt with recruits via social media, which placed them between a rock and a hard place. He believes he was treated in a disparate and unfair manner compared to other Soldiers who were accused of similar offenses. b. In the Recruiting and Retention Battalion in the summer of 2020, Master Sergeant (MSG) was extremely aggressive about making mission. This aggression created a hostile work environment that directly caused two recruiters to resign, SGT and SGT . A sworn statement from SGT states MSG instructed them to "Facebook stalk" recruits and distinguished between doing the job "honestly" versus "successfully." A second sworn statement from SGT states MSG told them to leverage their "strengths," to include flirting. A sworn statement from CPL states the applicant voiced concerns over MSG instructions that they all respond to phone calls, texts, and social media messages during the late hours. Lastly, a photograph of text messages from MSG was sent to them that includes stalking Instagram and Facebook, and messaging anyone who was graduating. c. The end result was an environment where he felt obligated to engage recruits on social media, regardless of the time of day. DODIs or other regulations which prohibited this contact took a back seat to his supervisor's direct, explicit, and repeated instructions. Instead of emphasizing the lateral limits of recruiting, MSG overtly told them to disregard them. d. As an additional matter, he believes he was treated in an unfair and disparate manner during this process. When these allegations arose, he was immediately stripped of his position and position of significant trust and authority, and instructed to turn in his gear. He then became the "assistant supply NCO" where his duties consisted solely of cleaning toilets and other menial tasks. Meanwhile, MSG was accused of harassment and has kept his position, his position of significant trust and authority, retained his gear, and is actually still in charge of the female Soldier who filed the report. It appears the command is playing favorites and it is a massive detriment to morale and cohesion. e. He acknowledged his social media contacts from almost 1 year ago were a mistake and a poor execution of MSG instructions. He has regretted them every day since. However, he believes he has already paid the price and then some. Since the Article 15, UCMJ, hearing, he has lost both of his parents and his children's godparent. His livelihood has hung in the balance. Month after month went by with little or no word about whether he would be unemployed in a day, week, month, or year. He is not a bad Soldier. This incident is the only blemish on his career and was an outlier based on several factors which will never occur again. 17. An undated text message, purportedly from MSG lists recruiting tactics that are working for people, including: * re-engage everyone you have talked to * email, text, then call people * hit Soldiers for leads * college lists * signs, penny trays, etc. * Indeed * Facebook marketplace/ads * stalk high school Instagram and Facebook page and message anyone graduating 18. NCARNG Army Element Joint Force Headquarters Orders 0001291886.00, 23 July 2021, demoted the applicant to the rank/grade of SGT/E-5 effective 13 May 2021 as a result of UCMJ action. 19. On 3 February 2022, SSG rendered a sworn statement wherein he stated he heard COL speak about the consequences of being under investigation for any accusation regarding a position of significant trust and authority during the mid-year conference in May 2021. COL make it clear that anyone in that situation would be found guilty rather than receive due process. COL said, "if you put yourself into a position to be under investigation, then you will be found guilty." Multiple recruiters attended this conference. 20. On 10 February 2022, SGT rendered a sworn statement wherein she stated she recalls hearing COL speak about the consequences of being under investigation for any accusation during the mid-year conference in May 2021. During his speech about positions of significant trust and authority, COL gave the impression to all recruiters that any recruiter who had any type of open investigation against him/her would be found guilty, rather than receiving fair treatment.? 21. On 27 February 2022 and 6 March 2022, the submitted Air Force Forms 102 and DA Forms 1559 to the IG Office, restating claims made by him and his counsel in his Article 15 appeal. 22. On 31 March 2022, the applicant retired from active duty due to permanent disability. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his rank as SGT/E-5 with an effective date of 1 January 2014 and that he was separated from 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 a. The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing after considering all the evidence submitted. The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing. In an open hearing, the commander found the applicant guilty of UCMJ violation. The resultant punishment was reductio to E-5. The applicant elected to appeal. A judge advocate officer reviewed the proceedings and determined they were conducted pursuant to law and regulations. The finding of guilty and punishment were appropriate. b. The Board does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander's function, and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, he 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. He also submitted an appeal. c. The Board determined the applicant did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings. The argument he now presents is not sufficient to change the determination of guilt made by the commander. His dissatisfaction with the outcome of this Article 15 does not invalidate it. He violated the UCMJ, and he was punished for it and the resultant punishment was his reduction. There is neither an error nor an injustice and there is no reason to set the Article 15 aside or restore his rank. In view of the foregoing, the Board determined there is an insufficient evidentiary basis for granting the applicant's requested 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: 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, 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 600-37 (Unfavorable Information), 2 October 2020, 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 3-2 (Policies) states unfavorable information will not be filed in the AMHRR unless the recipient has been given: (1) the opportunity to review the documentation that serves as the basis for the proposed filing; and (2) a reasonable amount of time to make a written statement in response. This statement may include evidence that rebuts, explains, or mitigates the unfavorable information. The recipient may also elect to decline, in writing, the opportunity to provide a written response. b. The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in the AMHRR. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management), effective 7 May 2014, prescribed policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File (OMPF), finance-related documents, and non-service related documents deemed necessary to store by the Army. 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. Appendix B (Documents Required for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) shows the original DA Form 2627 will be filed locally in unit NJP or unit personnel files for Soldiers who are in the rank of specialist/E-4 or corporal/E-4 and below (prior to punishment). Such locally filed originals will be destroyed at the end of 2 years. For all other Soldiers, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance folder or the restricted folder will be made by the imposing commander. Records of NJP presently filed in either the performance or restricted folder of the OMPF will remain so filed, subject to other applicable regulations. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007483 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1