BOARD DATE: 22 October 2014 DOCKET NUMBER: AR20140012643 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests removal of three records of nonjudicial punishment (NJP). The DA Forms 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)), dated 1 August 2008, 23 August 2011, and 26 November 2013, should be removed from his official records. 2. The applicant states: a. In August 2008, they wrongfully filed an Article 15 into his Official Military Personnel File (OMPF). After Legal reviewed all the documents, they found that it was an injustice, but the file is still in his OMPF and it is hurting him right now and he is unable to progress. b. In 2011, another Article 15 file was entered into his OMPF after his reduction in rank was suspended but it was already filed in his OMPF. c. Recently, in August 2013, he was found not guilty on an AWOL charge. Then in November 2013 the commander called him and gave him a Company Grade Article 15. He did not check any block to file it into his OMPF and gave him a copy. Then a few days after he corrected the original without the knowledge of his lawyer or himself. (1) He was on authorized leave in Germany; his report date was 2 August 2013. He was at the airport since the 31st at 0444 hours. It was a Space A Flight. When he realized he was not going make it, he called the chain of command and explained the situation to them. They asked him how many days extension he needed. They gave him 4 days. He was sitting in the plane when the pilot said they we are sorry but they won't be able to fly today due to a mechanical problem. He immediately contacted the chain of command but this time they refused to extend him. (2) He went to buy a ticket but there were no tickets available till the 15th of August unless he purchased a first class ticket in which the price was $2237.00 but he only had $1300.00. The next day he was flagged. He came back 6 days later and he was already dropped from the rolls and finance took about $1300 from him. They were trying to chapter him out based on being absent without leave (AWOL) when Legal told them they didn't have anything on him. (4) About 4 months later they called him and told him they got a company grade Article 15 for him. He accepted it just to move on, not because he was guilty. d. He went to see the whole chain of command at Fort Drum and even called the Pentagon and also sent letters and the regulation to the Commander, but he refused to give him a memo acknowledging the violation of the UCMJ. Now he is paying the consequences because he cannot go to Civil Affairs because of the recent Article 15 in his OMPF. e. In both cases, the regulation is clear: (1) filing determination must be determined at the time punishment is imposed and not after; (2) for the AWOL case the regulation says "A person on authorized leave without fault if unable to return that person has not committed the violation of AWOL”; and (3) the regulation was not being respected amid his conversation with the whole chain of command, even his letters to the company commander with all the regulations highlighted. f. Today, this recent filing is hurting him because he got accepted to go to Civil Affairs but he was flagged and couldn't go. Now with that filing in his OMPF, he can't go unless it is erased. 3. The applicant provides copies of – * a DA Form 2627 conducted on 1 August 2008 * a DA Form 2627 conducted on 2 August 2011 * associated counseling and witness statements * DA Form 266 (Report to Suspend Favorable Personnel Actions) (Flag)) initiated on 11 May 2011 * his Enlisted Record Brief * DA Form 2627 conducted on 26 October 2013 * emailed statement from him to the Commander, Headquarters and Headquarters Company (HHC), 3rd Brigade Special Troops Battalion (BSTB) dated 2 January 2014 * DA Form 268 initiated 7 August 2013 * Space A Sign-Up sheet showing a sign-up time of 0414 hours on 31 July 2013 * AMTRACK electronic ticket to arrive at Logan on 12 August 2013 * extract from the Manual for Courts-Martial * DA Form 4187-E (Personnel Action) reporting the applicant AWOL as of 1423 hours, 7 August 2013 * DA Form 4187-E changing the applicant's status from AWOL to present for duty as of 1615 hours 14 August 2013 * HHC, 3rd BSTB memorandum, dated 30 May 2013 4. The applicant offered in a supplement to his application: a. He wrote, "…I have forgotten to include some of the most crucial documents. This package includes the DA Forms 2627 (BOTH), and you can clearly see the correction/falsifications made by CPT B----- E. T--- after giving me a copy of the 2627 in order to file it into my OMPF…Also included inside the regulations that clearly stated when it should be made. There is another letter that I sent to the commander asking him to abide by the regulations…I got accepted to go to Civil Affairs since November 2013 but because of this situation my class was cancelled. Now with that Article 15 in my OMPF I won't be able to go to Civil Affairs for a period of 2 years, unless it is [taken] out of my OMPF…" b. He submitted copies of – * two copies of the DA Form 2627 conducted on 26 October 2013 * a 10 January 2014 letter to the Commander, HHC, 3rd BSTB * another copy of the emailed statement from him to the company commander, dated 2 January 2014 * DA Form 31 (Request and Authority for Leave from 13 July 2013 to 2 August 2013 * the Space A Sign-Up sheet showing a sign up time of 0414 hours on 31 July 2013 * AMTRACK electronic ticket issued on 12 August 2013 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 4 January 2005 and completed training as a petroleum supply specialist. He was promoted to sergeant on 1 March 2003. 2. On 1 July 2008, the applicant was afforded an opportunity to consult with counsel before he accepted punishment under the provisions of Article 15, UCMJ for absence from his appointed place of duty and AWOL. He asked that a person be present to speak in his behalf. At a closed hearing, on 1 August 2008, the battalion commanded imposed punishment consisting of reduction to pay grade E-4, forfeiture of $974.00 per month for 2 months, and restriction and extra duty for 45 days. He directed the DA Form 2627 be filed in the restricted portion of the applicant's record. 3. On 22 June 2011: a. The applicant accepted punishment under the provisions of Article 15, UCMJ for two specifications of disrespect to a superior noncommissioned officer (NCO), a staff sergeant, by throwing a counseling statement on his desk and saying to him, "SGT between me and you, I have only a few months left in the Army and if anything were to happen to me because of this you will pay… because I'm from Haiti and you don't know where I come from." b. At a closed hearing, the battalion commander imposed punishment consisting of reduction to pay grade E-4 and forfeiture of $500.00 per month for 2 months, both suspended and automatically remitted on 23 February 2012 if not previously vacated, extra duty for 45 days, and an oral reprimand. c. The commander directed filing of the DA Form 2627 in the performance section of the applicant's record. The applicant did not appeal. 4. On 26 October 2011, the applicant was honorably released from active duty due to completion of required active (duty) service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). He had 6 years, 9 months, and 26 days of creditable service. His authorized awards were the Afghanistan Campaign Medal with one campaign star, Army Commendation Medal, Army Achievement Medal (3rd Award), Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon (2nd Award), NATO Medal, Combat Action Badge, and Driver and Mechanic Badge with Driver ? W Bar. 5. He served approximately a year in a USAR Troop Program Unit and on 24 January 2013, he again enlisted in the Regular Army. 6. On 17 October 2013, the applicant was advised that the company commander was considering imposing punishment for AWOL from 7 to 14 August 2013. The applicant did not demand trial by court-martial. He requested a closed hearing but did not elect to have someone speak in his behalf. He indicated he was attaching matters in defense or mitigation. On 26 November 2013, the commander imposed punishment consisting of extra duty for 14 days and forfeiture of $675.00 pay. This forfeiture was to be suspended and automatically remitted if not vacated before 25 January 2014. Filing of the record in the performance section of the OMPF was directed. 7. The portion of the Manual for Courts Martial that the applicant provided states: Inability to return - The status of absence without leave is not changed by an inability to return through sickness, lack of transportation facilities, or other disabilities. But the fact that all or part of a period of unauthorized absence was in a sense en-forced or involuntary is a factor in extenuation and should be given due weight when considering the initial disposition of the offense. When, however, a person on authorized leave, without fault, is unable to return at the expiration thereof, that person has not committed the offense of absence without leave. 8. 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. It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. NJP may be imposed to correct, educate, and reform offenders who 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. It further states: a. A commander's decision whether to file a record of NJP in the Performance or Restricted folder of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself. In making a filing determination, 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 section. 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 section. b. For Soldiers in the ranks of SGT and above, the original copy of the NJP will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the Performance or Restricted folder of 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. c. Applications for the removal of the NJP from the OMPF based on an error or injustice will be submitted to the Army Board for Correction of Military Records (ABCMR). It further states that there must be clear and compelling evidence to support removal of a properly-completed, facially-valid NJP from a Soldier's record by the ABCMR. 9. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. a. It identifies those documents that are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: Performance, Service, or Restricted. It shows the NJP is filed in either the Performance or Restricted section of the OMPF as directed in item 5 of the NJP. b. It provides that the Restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this folder is controlled. It will not be released without written approval from the Commander, HRC, or the Department of the Army Headquarters selection board proponent. This paragraph also provides that documents in the Restricted folder of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army. DISCUSSION AND CONCLUSIONS: 1. The applicant requests that the record of three NJPs be removed from his record. 2. The applicant claims that he was not AWOL because of circumstances beyond his control but the unavailability of space available military transportation or not being able to get a seat on public or commercial transportation does not equate to circumstances being beyond one’s control. For example: the weather is beyond one’s control; having insufficient funds is not. The Manual for Courts-Martial section that the applicant cited points out even sickness does not change an AWOL person's status. 3. The 2011 NJP punished the applicant for disrespect to an NCO, but it was clearly communicating a threat. The fact that the applicant has a copy of the 2011 DA Form 2627 that does not have the filing instruction completed is not sufficient evidence to show that the filing determination was not made at the time the punishment was imposed. Furthermore, he offers no argument as to why this supposed technical error should justify removing the record of this egregious behavior. 4. In order to remove a document there must be clear and convincing evidence showing the document is untrue or unjust. In the absence of an error or an injustice, there is no reason to remove it from her records. 5. The NJP proceedings were conducted in accordance with law and regulation and the documents are properly filed in his record as directed by the imposing commanders. There is no evidence or convincing argument show the contents of the NJP records are untrue or unjust. 6. In view of the foregoing, the applicant's request should be denied. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _X _______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20140012643 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140012643 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1