BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120007811 


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 his nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) from his Official Military Personnel File (OMPF).

2.  The applicant states he received a field grade Article 15 on 15 February 2007 and he now wants it removed from his OMPF.  The NJP stemmed from civilian charges during a complicated divorce.  His punishment was reduction to the rank/grade of sergeant (SGT)/E-5, suspended for 180 days.  He contends the NJP sheds an unfavorable action against him and it does not present the entire picture.

3.  The applicant further states that after he was found innocent of all civilian charges, he requested the imposing commander rescind the NJP.  In 2010, he submitted a DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ) to rescind the NJP.

4.  The applicant's civilian trial was in 2009.  As instructed, he sent a copy of the trial conclusion to the imposing commander and a copy to his S-1 (personnel officer).  His S-1 assured him that this matter would be corrected but that it would take some time.  It is now 2012, and the NJP is still in his OMPF.  He argues that he has been on a long journey to prove his innocence and has met great resistance in having this NJP removed from his OMPF.

5.  The applicant provides a Memorandum for Record, dated 25 November 2009 and a DA Form 2627-2, dated 30 March 2010.
CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time of his application, the applicant was serving on active duty in the Regular Army in the rank/grade of sergeant first class (SFC)/E-7.

3.  On 13 September 2006, a DA Form 4856 (Developmental Counseling Form) indicates that the applicant was counseled for disobeying a direct order from his company commander and for lying to a senior noncommissioned officer (NCO).  The applicant had been given an order to not have any contact with his spouse due to accusations brought against him on 8 September 2006.  He later violated that order and contacted his spouse by cell phone.  The applicant was later confined on a separate charge for making threats.  He was later released to the unit first sergeant and he was under a court order, as well as an order from his commander and first sergeant, to not have any contact with his spouse.  Later that night, the applicant twice text messaged his spouse, breaking both the court order and the orders from his chain of command.  When the applicant was first asked by the first sergeant if he had sent any text messages to his spouse he denied he had done so.  When asked a second time, he again denied doing so.  After he was placed in custody, the first sergeant asked him again to tell the truth, and the applicant replied that he may have inadvertently sent it.

4.  On 14 September 2006, a DA Form 4856 indicates that the applicant was counseled for impersonating an officer.  The first sergeant stated that his investigation revealed that on 9 September 2006, the applicant had called his spouse's place of employment to verify if she worked there.  In doing so, he identified himself as her husband's commanding officer.  The applicant admitted to making the call, but stated that he had not identified himself by name.  The employer wrote a sworn statement of the incident.

5.  On 18 September 2006, a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was initiated for the purpose of adverse action.
6.  On 31 January 2007, the applicant's commander informed him that he was considering whether he should receive NJP.  The basis for this action included:

* On 9 September 2006 he knowingly made a false official statement to the first sergeant with intent to deceive
* On 8 September 2006 he wrongfully and willfully impersonated a commissioned officer
* On or about 20 September 2006 he broke restriction

7.  On 15 February 2007, the applicant indicated he had been afforded the opportunity to consult with counsel and he did not demand trial by court-martial.  Furthermore, he requested the NJP hearing be open, a person speak on his behalf, and matters in defense, mitigation, and/or extenuation would be presented in person.

8.  On 15 February 2007, in an open hearing, all matters in defense, mitigation, and/or extenuation were considered.  The imposing commander found the applicant guilty of the charges and imposed a reduction to SGT/E-5, suspended for 180 days.  The imposing commander directed filing of the NJP in the restricted section of the applicant's OMPF.

9.  On 15 February 2007, the applicant indicated that he did not appeal the NJP.

10.  On 25 November 2009, the imposing commander stated in a memorandum for record, as provided by the applicant, that he saw no reason to keep the applicant's NJP in the restricted section of his OMPF.  He further stated:

	a.  At the time of the NJP, the applicant was going through a difficult divorce that caused him to undergo punishment.  The commander reviewed the matters of defense and mitigation during the NJP hearing and deemed it necessary to impose a 180 day suspension of his punishment, which he completed without fail.

	b.  The applicant had nine civilian charges filed against him, all stemming from his divorce.  He was found not guilty on all counts and he also gained full custody of their child.

	c.  The applicant has had an exemplary record throughout his 15 years in the Army.  He has since been promoted to SFC/E-7, and he deployed to Iraq.

11.  The DA Form 2627-2, dated 30 March 2010, as provided by the applicant, indicates the imposing commander requested remission of the applicant's NJP.

12.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.

	a.  This regulation states that the basis for any set aside action is a determination that under all of the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear Injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

	b.  This regulation states that the decision to file the NJP in the performance or restricted section of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be so indicated on the NJP.

	c.  This regulation provides for the setting aside of the punishment imposed by NJP and restoration of rights, property and privileges.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges or property affected by the portion of the punishment set aside are restored.  NJP 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.  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.  Clear injustice means that there exists an unwaived legal or factual error which 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 an adverse effect on the retention or promotion potential of the Soldier.

	d.  This regulation provides that remission is an action whereby any portion of the unexecuted punishment is canceled.  Remission is appropriate under the same circumstances as mitigation.  An unsuspended reduction is executed, but may be mitigated.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides that:

	a.  all personnel information recorded under the authority of this regulation is the property of the U.S. Government.  Once recorded, it will not be removed except as provided by law or this regulation.

	b.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the OMPF unless directed by one or more of the following:

* The Army Board for Correction of Military Records (ABCMR)
* The Department of the Army Suitability Evaluation Board (DASEB)
* Chief, Appeals and Corrections Branch, Human Resources Command
* The OMPF custodian when documents have been improperly filed
* Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation
* Chief, Appeals Branch, Human Resources Command
* Chief, Appeals Branch, National Guard Personnel Center

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of his NJP from his OMPF because the NJP stemmed from civilian charges during a complicated divorce of which he was found innocent.

2.  The NJP clearly indicates the applicant's misconduct on three separate occasions was the reason for his punishment.  There is no indication that any of the charges related to his civil trial were a basis for his misconduct.

3.  The evidence in this case clearly indicates the NJP was properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized her rights.

4.  The evidence also suggests that he was afforded due process in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.  However, the applicant accepted NJP in lieu of demanding trial by court-martial.  Furthermore, did not appeal the punishment to the next higher authority.

5.  The imposing commander's decision to now request remission of the punishment is inconsequential.  The punishment was a suspended reduction which he fulfilled in its entirety.  Therefore, there is nothing remaining to remit.

6.  The imposing commander's argument that because the applicant was found not guilty of all civilian charges his NJP should now be removed from his OMPF is without merit.  Furthermore, the imposing commander's contention that the applicant's misconduct was the direct result of his divorce action is unfounded by any of the available evidence.  His desire to change his mind now is nothing more than retrospective thinking.

7.  The applicant's years of service and advancement as an NCO clearly show that he knew or should have known that disobeying direct orders, impersonating a commissioned officer, and breaking restriction are offenses that require command attention and action.  In this case, that action was given and his punishment was mitigated to account for his ongoing divorce at the time.  Accordingly, there is no error or injustice in this case.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120007811



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ABCMR Record of Proceedings (cont)                                         AR20120007811



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