IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20130008409 


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 the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 8 December 2009, from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File, or transfer of the DA Form 2627 from the performance section to the restricted section of his AMHRR. 

2.  The applicant states he believes he has made the necessary self-improvements to show that he is a valuable member of the Army National Guard (ARNG) and the Army. 

	a.  He believes he has maintained a high degree of professionalism and success in his current position as a National Guard Bureau Liaison Noncommissioned Officer (NGB LNO) and Department of the Army Promotions NCO.

	b.  He has fulfilled the punishments associated with the Article 15 and based purely on his self-initiative he completed an anger management course and attended several behavioral classes.  Taking the behavioral health classes should prevent any further negative social stigma preventing him from future promotions or continuation on Title 10 Active Guard Reserve (AGR) tours.

	c.  He has also completed an active parenting class to be more effective for his children in a blended family situation.  In addition, he has re-enrolled to complete his Master's of Divinity degree from Liberty University.

3.  The applicant provides:

* Letter of support 
* Contested Article 15
* Certificate for completion of Anger Management
* Letter and certificate for completion of Active Parenting
* Noncommissioned Officer Evaluation Reports (NCOER) for the periods 20100501 - 20110430, 20110501 - 20120429, and 20120430 - 20130429
* Academic Transcripts
* Denial by the Department of the Army Suitability Evaluation Board (DASEB)

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the ARNG on 6 December 1986.  He served through multiple extensions in a variety of stateside and/or overseas assignments, including periods of mobilization, and he was promoted to sergeant first class (SFC)/E-7 on 30 November 2008.  

2.  He was assigned to the Joint Force Headquarters, Michigan ARNG with duty at the NGB Headquarters, Arlington, VA. 

3.  On 17 May 2009, Military Police (MP) were notified that a U.S. Air Force master sergeant had been involved in an argument with the applicant at the Fort Myer Exchange parking lot.  She stated that during the argument, the applicant grabbed her face by the jawbone on both sides with two hands and head-butted her numerous times while yelling.  She added that he left the scene in his vehicle.  She was escorted back to the station with red marks around her neck.  

4.  The MP Report, filed in the applicant's official records, show the MPs conducted a National Criminal Information Center check that revealed the applicant was previously:

* charged with assault or assault and battery in March 1991
* charged with assault or assault and battery in December 1999
* charged with disorderly conduct in March 1985 (insufficient evidence) 

5.  The investigation was coordinated with a Staff Judge Advocate attorney who opined there was probable cause to believe the applicant committed the offense of simple assault - consummated by battery.  A military protective order was issued by his chain of command. 

6.  On 8 December 2009, while holding the rank/grade of SFC/E-7 and serving at the NGB Headquarters, the applicant accepted nonjudicial punishment (NJP) in a closed hearing under the provisions of Article 15 of the UCMJ for unlawfully grabbing a master sergeant by the jawbone, pulling her face towards him, and head-butting her with his head.  His punishment consisted of a forfeiture of $2,260 pay for 1 month, extra duty, and an oral reprimand.  

7.  The imposing commander directed filing of the original DA Form 2627 in the performance section of the applicant's AMHRR.  He elected not to appeal his punishment.

8.  A review of his AMHRR reveals that the contested DA Form 2627 and the allied documents are filed in the performance section of his AMHRR.

9.  His NCOER for the period 20081201 - 20091130 does not mention his misconduct or address this Article 15. 

10.  On 25 August 2011, the DASEB reviewed his petition to transfer the contested Article 15 from the performance section to the restricted section of his AMHRR; however, the DASEB unanimously voted to deny his petition. 

11.  Since this incident, the applicant has accomplished the following:

* completed the Department of Behavioral Health Anger Management on 25 January 2011 and Active Parenting on 11 December 2010
* was promoted to master sergeant/E-8 on an unknown date
* was extended in the ARNG for 3 years on 17 March 2010
* received multiple NCOERs that rated him among the best and/or superior

12.  He submitted a statement of support from a colonel, serving as a special advisor to the Command General, U.S. Army Human Resources Command (HRC).  The author recommends the Article 15 be moved to the restricted section of the applicant's AMHRR.  He adds that the applicant continued self-improvement by completing various levels of anger management and pursuing a master's degree in theology.  He has proven himself to be a valuable team member since he has been assigned to HRC.  His NCOERs reflect his dedication and continued self-improvement. 

13.  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 nonpunitive 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 nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  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.

	a.  Paragraph 3-6 addresses the filing of an NJP and provides, in pertinent part, 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 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.  Paragraph 3-37c(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the AMHRR.  The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR 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.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states that applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates that there must sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR.


14.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.  The naming convention AMHRR replaces OMPF.  Folders and documents previously authorized for filing in any part of the OMPF will remain in the AMHRR.  

15.  Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the AMHRR and/or the interactive Personnel Electronic Records Management System.  Table B-1 states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4b or 5 of DA Form 2627.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an Article 15 hearing after considering all of the evidence submitted by the applicant.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for an Article 15 hearing.  

2.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal the Article 15 through the proper channels.  The applicant further elected not to appeal this Article 15 to the next higher commander.  The imposing commander directed filing the Article 15 in the performance section of his AMHRR.  This is where the subject Article 15 is currently filed.

3.  His Article 15 proceedings were conducted in accordance with law and regulation and the Article 15 and allied documents are properly filed in the performance section of his AMHRR as directed by the imposing commander.  There is insufficient evidence of record and he provides insufficient evidence to show the DA Form 2627 is untrue or unjust.

4.  It is clear that applicant has taken positive steps in the form of completing an anger management and an active parenting class.  It is also clear that his 

performance has been outstanding as evidenced by his NCOERs and the letter of support he provides.  However, the interests of the Army are compelling when the record reflects unmitigated 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 of the AMHRR. 

5.  In reviewing his service record, including the MP Report, it appears this may not be the first time the applicant has been charged with assault.  Although his previous issues are not related to the issue at hand, his argument that the Article 15 has served its purpose is defeated by the fact that such misconduct appears to be recurring.  But regardless whether this was his first, second, or tenth time, the fact remains he was a senior NCO, in a position of authority and trust, and he violated that trust.  It is that simple. 

6.  Additionally, his NCOER during the timeframe is silent with respect to his misconduct and despite the seriousness of his assault charge, it appears he was promoted to MSG/E-8 and is currently working at a high level of the Department of the Army's HRC.  

7.  Since there is insufficient evidence to show that this Article 15 has served its purpose, and since there is no clear and convincing evidence showing the document is untrue or unjust, he should not be entitled to any 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)                                         AR20130008409



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ABCMR Record of Proceedings (cont)                                         AR20130008409



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