IN THE CASE OF:	  

		BOARD DATE:	  12 September 2013

		DOCKET NUMBER:  AR20130002732 


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 the removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 
1 March 2012, from his Army Military Human Resource Records, formerly known as the Official Military Personnel File.

2.  The applicant states, in effect, that the DA Form 2627 should be removed from his official records based on a commander’s inquiry that resulted in the dismissal of the Article 15 based on “Clear Injustice” as documented on DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ) signed by his battalion commander on 24 January 2013.

3.  The applicant provides a list of documents submitted with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was assigned to a Medical Logistics Company at Fort Hood, TX, when his unit deployed to Afghanistan in support of a medical task force.  The applicant was assigned as the stock control supervisor of the storage section of Class VIII medical supplies and equipment. 

2.  On 30 December 2011, the applicant’s commander (a promotable captain) appointed a first lieutenant as an investigating officer (IO) for a commander’s inquiry to conduct an investigation into the facts and circumstances surrounding the incident of improper/negligent operations in the warehouse storage section.

3.  Upon completion of the investigation, the IO recommended that the applicant be removed from his position as the storage noncommissioned officer in charge, that legal counsel be sought for UCMJ action, and that the applicant be counseled regarding his unethical practices.

4.  On 1 March 2012, nonjudicial punishment (NJP) was imposed against him for dereliction in the performance of his duties on divers occasions during the period 9 September to 30 December 2011 by failure to account for stock in the warehouse and for concealing excess medical supplies in unauthorized locations.  His punishment consisted of a forfeiture of pay and extra duty and restriction.  The imposing commander directed that the DA Form 2627 be filed in the performance section of his AMHRR.  

5.  The applicant elected to appeal his punishment but did not submit additional matters.

6.  On 6 March 2012, the applicant’s appeal was denied by a lieutenant colonel (LTC) commanding a veterinary detachment.  A legal review was conducted by the staff judge advocate of the 82d Airborne Division.  

7.  The applicant was reassigned to another location in Afghanistan and subsequently returned to Fort Hood in July 2012.

8.  On 23 October 2012, the applicant’s battalion commander (a LTC) appointed a major as a fact-finding officer to investigate the facts and circumstances surrounding the alleged improper or negligent operations in the Medical Logistics Company warehouse while deployed to Afghanistan between August and  December 2011.

9.  On 26 November 2012, the fact-finding officer submitted a memorandum indicating that after reviewing the evidence presented by the applicant, his chain of command, and the previous command inquiry, he found the allegations to be unfounded.

10.  On 4 December 2012, the applicant submitted an appeal of the imposition of the NJP to his battalion commander who was located at Fort Hood requesting that the punishment be set aside.

11.  On 3 January 2013, the battalion commander authored a memorandum in response to the applicant’s appeal in which he recommended that the NJP be revoked, that the documents related to the NJP be removed from his official records, that all monies withheld be returned to him, that his Good Conduct Medal be reinstated, and that he be submitted for an end of tour award.
12.  On 24 January 2013, the battalion commander completed a DA Form 2627-2 in which he set aside the punishment imposed on 1 March 2012 due to a clear injustice and designated himself as the superior authority.

13.  The DA Form 2627-2 is currently filed in the performance section of his AMHRR with no addenda or attachments.

14.  A review of his official records shows that the applicant also has a DA Form 2627, dated 15 January 2009, filed in the restricted section of his AMHRR.

15.  Army Regulation 27-10 (Military Justice) provides that the decision to file DA Forms 2627 in the performance or restricted section of the AMHRR would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander is final and is indicated in item 5 of the DA Form 2627. 

16.  Paragraph 3-28 (Setting Aside and Restoration) provides that 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 under UCMJ, Article 15.  In addition, the power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a separate addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the DA Form 2627, dated 1 March 2012, and associated documents should be removed from his official records based on the set-aside action completed by his battalion commander on 24 January 2013 has been noted and appears to lack merit.

2.  The applicable regulation requires that an addendum be added to the DA Form 2627-2 that sets aside punishment after 4 months from the date punishment was imposed.  In the applicant’s case, 10 months had elapsed since the punishment and there is no addendum attached to the set-aside action     (DA Form 2627-2). 

3.  It is also noted that when the applicant’s unit deployed to Afghanistan in support of the medical task force, the unit was under the operational control of another command that had UCMJ appellate authority over the applicant.

4.  The applicant appealed his punishment to a higher authority and his appeal was denied by a LTC in command at the time.

5.  The applicant appealed his punishment again when he returned to his home station and his battalion commander (a LTC) designated himself as a superior authority and took action to set aside the punishment.  However, it is unclear as to how the battalion commander is or was a superior authority at the time he took the action.  Therefore, it does not appear that the actions taken or the manner in which they were executed were valid and in accordance with the applicable regulations.

6.  Accordingly, there appears to be no basis to remove the record of NJP from his official records as requested.  

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)                                         AR20130002732





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ABCMR Record of Proceedings (cont)                                         AR20130002732



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