IN THE CASE OF:
BOARD DATE: 29 May 2012
DOCKET NUMBER: AR20120006578
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 a DA Form 2627 (Record of Proceedings Under Article 15 UCMJ) from his Official Military Personnel File (OMPF).
2. The applicant states the Article 15 was never presented to him and a hearing never took place. He claims it was not prepared in accordance with the applicable regulation and therefore should be removed from his record.
3. The applicant provides a self-authored statement and the five enclosures identified therein in support of his request:
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that after previously serving in the United States Army Reserve (USAR) and Regular Army, he reenlisted in the Regular Army on
4 October 1998. At the time of his application to the Board, he was serving as a staff sergeant at Fort Huachuca, Arizona.
2. The restricted (R) portion of the Official Military Personnel File (OMPF) contains a partially legible DA Form 2627 that seems to be signed by the commander sometime in 1997. It indicates nonjudicial punishment (NJP) was imposed on the applicant for an offense he allegedly committed in 1993 while serving as a sergeant at Fort Lee, Virginia.
3. Item 3 of the DA Form 2627 is not completed and there is no indication the applicant was informed of the proceedings or afforded the rights he had in connection with this action. The applicants signature is not anywhere on the
DA Form 2627 and there is no indication he was ever afforded his appellate rights in connection with the Article 15 action.
4. 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, United States, 2008, hereafter referred to as the MCM, and the rules for courts-martial (RCMs) contained in the MCM. Chapter 3 contains guidance on administering nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). Paragraph 3-12 identifies the statute of limitations and states NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition. Computation of this 2-year limitation is in accordance with the UCMJ, Arts. 43(c) and (d).
5. Paragraph 3-18 of the military justice regulation contains guidance on notification and explanation of rights in connection with the imposition of NJP. It states that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15 of the UCMJ. The Soldier will also be notified of the maximum punishment that the commander could impose. It further stipulates that the Soldier will be provided a copy of DA Form 2627 with items 1 and 2 completed, including the date and signature of the imposing commander. It further states the applicant will be afforded various rights in connection with NJP action:
6. Appendix B provides guidance on conducting proceedings under Article 15. It requires notification to the Soldier by the imposing commander or his/her representative and the Soldiers elections regarding whether or not he/she demands court-martial; and acknowledgement and election of hearing options and rights. The Soldier also has to be afforded the right to appeal the punishment. There are no provisions for imposing NJP without the participation of the Soldier.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he was not afforded his rights in connection with the Article 15 action documented in the DA Form 2627 in the R portion of his OMPF has been carefully considered and found to have merit.
2. By regulation, the Soldier is entitled to several rights in connection with the imposition of NJP which includes the right to a hearing and to appeal whatever punishment is imposed. The DA Form 2627 in question is void of the applicant's signature or any indication that he was properly afforded the rights accorded him by regulation in connection with the imposition of NJP. The regulation does not allow for the imposition of NJP without the participation of the Soldier. Therefore, given the DA Form 2627 on file in the R portion of the applicant's OMPF is incomplete and appears to have been processed without his participation and likely was completed outside of the 2 year statute of limitations, it would be appropriate to remove this document from his OMPF.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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 from the restricted portion of his OMPF.
_______ _ __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) AR20120006578
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120006578
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