BOARD DATE:   8 November 2012

		DOCKET NUMBER:  AR20120010408 


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 all punishments imposed by his 16 November 2009 nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) be wholly set aside and the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be removed from his records.  He further requests restoration of his staff sergeant (SSG) rank and forfeitures.

2.  The applicant states he:

* was assigned to Company A, 426th Base Support Battalion (BSB), Fort Campbell, KY
* erroneously received a field grade NJP from the Commander, 426th BSB for being absent without leave (AWOL) from 6-17 October 2009
* was attached, on a series of orders and amendments, to U.S. Army Recruiting Battalion, Tampa, FL, from 28 September through Friday,
9 October 2009 (Monday, 12 October 2009 was Columbus Day - Federal holiday)
* did not learn of his release from attachment until 13 October 2009 due to a training holiday
* was placed in an AWOL status by Company A, 426th BSB on 6 October 2009 due to an administrative error
* received a corrected DA Form 4187 (Personnel Action), dated 17 October 2009
* was not in an AWOL status at anytime during the period 6 through 17 October 2009


* was signed out and charged leave for the period 8 to 17 October 2009
* appealed his NJP, but was only granted partial relief
* has sought relief from every level of command up to division at Fort Campbell, and now at Fort Benning, GA

3.  The applicant provides:

* self-authored statements
* DA Form 2627
* 3 sets of orders from the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Stewart/Hunter Army Airfield, Army Personnel Processing Center, MacDill Air Force Base, FL, as follows:

*	Orders Number 268-014, dated 25 September 2009
*	Orders Number 280-011, dated 7 October 2009
*	Orders Number 282-011, dated 9 October 2009

* two DA Forms 4187, dated 6 October 2009 and 17 October 2009
* memorandum from the Chief, Human Resources Division, U.S. Army Recruiting Battalion Tampa, dated 30 November 2009
* DA Form 31 (Request and Authority for Leave), dated 2 September 2009
* Article 15, UCMJ, appeal, dated 1 December 2009
* self-authored memorandum, dated 8 February 2012
* DA Form 4856 (Developmental Counseling Form), dated 12 April 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army sergeant (SGT)/E-5 with a date of rank (DOR) of 9 December 2009.

2.  During the period 1 August 2005 to 23 June 2009, the applicant was a SSG recruiter assigned to the U.S. Army Recruiting Battalion Atlanta, Smyrna, GA.  

3.  On 28 August 2009, the applicant was reassigned from recruiting duty to Company A, 426th BSB, 101st Airborne Division, Fort Campbell.  Orders
264-012, issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Stewart/Hunter Army Airfield, GA, Army 


Personnel Processing Center, MacDill Air Force Base, FL, dated 21 September 2009, attached the applicant to the U.S. Army Recruiting Battalion Tampa, for the period 14-27 September 2009.  This order is not available for review; however, the following amendments are available:

* Orders 268-014, dated 25 September 2009, extended attachment to include the period 28 September 2009 to 4 October 2009
* Orders 280-011, dated 7 October 2009, extended attachment to include the period 5-9 October 2009

4.  Orders 282-011, dated 9 October 2009, released the applicant from attachment effective 11 October 2009.

5.  A DA Form 4187 from the Commander, Company A, 426th BSB to the S-1, 426th BSB, dated 6 October 2009, changed the applicant's duty status from present for duty to AWOL, effective 0630 hours, 6 October 2009.

6.  A DA Form 4187 from the Commander, Company A, 426th BSB, through the Commander, 426th BSB, to the Finance Control Section, 101st Airborne Division, dated 17 October 2009, changed the applicant's duty status from AWOL to present for duty effective 0630 hours, 17 October 2009.  This form states:

* "SM (service member) duty status has changed from AWOL to Present for Duty"
* "SM was erroneously placed on AWOL on 06 OCT, 2009"

This form does not provide a corrected present for duty to AWOL date.

7.  The applicant provides a DA Form 31, dated 2 September 2009, showing he requested ordinary leave from 8-27 September 2009, and he signed out of his unit at 0500 hours, 8 September 2009.  This form shows he returned at 0359 hours 17 October 2009.  There is also an annotation in block 17 (Remarks) which says, "Chargeable leave is from 8 Oct 09 to 17 Oct 09.

8.  On 16 November 2009, the 426th BSB commander offered the applicant NJP for being AWOL from 6 October 2009 to on or about 17 October 2009.  After having been afforded time to consult with legal counsel, on 30 November 2009, the applicant accepted NJP in a closed hearing before the battalion commander.  On the same date, the battalion commander found the applicant guilty of AWOL.  He imposed a reduction from SSG to SGT, forfeiture of $1,414.00 pay per month 


for 2 months, and 45 days of extra duty.  The commander directed the NJP be placed in the performance section of the applicant's Army Military Human Resources Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

9.  The applicant appealed the punishment and, on 9 December 2009, the Commander, 1st Brigade Combat Team granted his appeal in part by suspending the forfeiture of $1,414.00 pay per month for 2 months unless vacated.  

10.  A review of the applicant's AMHRR failed to show a copy of the DA Form 2627 and associated documents in the performance section or any other section of his interactive Personnel Electronic Records Management System (iPERMS) record.

11.  The applicant's pay record shows his pay was corrected in May 2011 and a collection was made.  Additionally, his pay record shows chargeable leave during 2009 only for the following periods:

* 19 February 2009 through 23 February 2009
* 22 May 2009 through 28 May 2009
* 31 July 2009 through 1 August 2009

12.  The Defense Finance and Accounting Service (DFAS) verified:

* his pay records do not show any leave taken in September or October 2009
* a report of his AWOL was created in October 2009, but was cancelled
* his effective date of rank/pay grade for SSG/E-6 was 1 September 2004
* his effective date of rank/pay grade for SGT/E-5 was 30 November 2009

13.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

	a.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's AMHRR is as important as the decision relating to the imposition of 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.  Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted portions in the AMHRR will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by superior authority.  For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the AMHRR.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the ABCMR.  There must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier's record by the ABCMR.

	d.  Set aside 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 under Article 15, UCMJ.  In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case.  If all findings are set aside, then the NJP itself is set aside and removed from the Soldier's records.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the NJP 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.  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.



14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records, renamed Army Military Human Resource Records Management) prescribes the policy for access to iPERMS and the AMHRR.  It establishes principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support military personnel information management and records.  It states that once placed in the AMHRR, a document becomes a permanent part of that file.  The document will not be removed from an AMHRR or moved to another part of the AMHRR unless directed by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his NJP under the provisions of Article 15, UCMJ, be set aside and removed from his record, and restoration of his rank/grade to SSG/E-6 and forfeitures.  His requests were carefully considered.

2.  The applicant's DA Form 31, dated 2 September 2009, shows two periods of leave; however, DFAS has no record of either period of leave.  

3.  His commanding officer initiated a DA Form 4187 to correct an erroneous AWOL status date; however, the applicant's Article 15 includes this erroneous AWOL date.  

4.  It appears his Article 15 was not processed to his pay records until a later time and was never placed in the performance section of his AMHRR.  A review of the applicant's iPERMS file shows the Article 15 and associated documents are still missing from the performance section of his AMHRR.

5.  Regarding his request to set aside his NJP and restore his rank and forfeitures, it is noted the applicant accepted NJP under Article 15, UCMJ.  He was afforded due process and his NJP proceedings were conducted in accordance with law and regulation.  

6.  Further, when considering all matters presented in appeal, the imposing official determined the applicant was AWOL and granted him leniency insofar as suspending a portion of his punishment involving forfeitures.  His reduction, with the resulting loss of pay, was allowed to stand.  

7.  Although there is no record of the applicant's NJP under Article 15, UCMJ, filed in his AMHRR, it appears this is because the Article 15 proceedings were not properly filed as directed by the imposing commander.   

8.  Further, the applicant provides a copy of his DA Form 2627; however, he fails to provide a copy of the memorandum prepared by the staff judge advocate's office as indicated on the form.  Without this memorandum and documentation explaining the overlapping AWOL date and present for duty status, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout his NJP under Article 15 proceedings. 

9.  The applicant has requested the ABCMR remove a DA Form 2627 which has not been filed in his AMHRR.  The Board cannot remove a document that has not been filed.  However, should this document and supporting evidence be filed at a later date as directed by the imposing authority, there is no evidence that such a filing would be an error or unjust.  In order to remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust.  If the DA Form 2627 is filed at a later date and the applicant can provide evidence showing this document is in error or unjust, he may submit a new application to the Board. 

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)                                         AR20120010408



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ABCMR Record of Proceedings (cont)                                         AR20120010408



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