IN THE CASE OF:
BOARD DATE: 3 September 2013
DOCKET NUMBER: AR20130009782
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, UCMJ (Uniform Code of Military Justice)), dated 8 January 2011, and allied documents that are filed in his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).
2. The applicant states he was assigned to Task Force Odin in Afghanistan and served as the first sergeant of Company A from 1 October 2009 until he was verbally relieved of duty pending the findings of a command directed Army Regulation 15-6 (AR 15-6) investigation. He was formally moved to another position in the battalion on 1 October 2010.
a. On 24 December 2010, the record of proceedings under Article 15 were read to him by Colonel (COL) P--- G. A----, Commander, 10th Combat Aviation Brigade (CAB) and Task Force Falcon. At that time, he placed his initials in the block indicating "I appeal and submit additional matters." He states, "I was never given this opportunity."
b. He asked the battalion command sergeant major (CSM) about his appeal on a weekly basis. He was told that the appeal authority (i.e., Commander, International Security Assistance Force) was busy and the brigade was trying to get the applicant an appointment with him. He adds, "They continued to blow me off until we redeployed."
c. In January 2011, he was notified of his selection for promotion to master sergeant (MSG).
d. While he was at Fort Hood, TX, he discussed the erroneous Article 15 with the leadership of the 21st Cavalry Brigade, but they were not interested in looking into the matter.
e. In July 2011, he was notified that a Standby Advisory Board (STAB) "randomly selected" his records and he was removed from the MSG list.
f. In April 2013, a CSM encouraged him to pursue the matter relating to the Article 15 with the Fort Rucker Inspector General's (IG) Office. The IG told him that his case is being held as an "open" case pending clarification from the legal assistance office.
g. On 7 May 2013, the Senior Defense Counsel, Trial Defense Services (TDS), provided him a memorandum in support of his request for removal of the
Article 15 from his AMHRR.
3. In support of his request the applicant provides the memorandum from his counsel and a copy of the DA Form 2627.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests removal of the DA Form 2627, dated 8 January 2011, that is filed in the performance section of the applicant's AMHRR.
2. Counsel states that, on 19 April 2013, the applicant spoke with a legal specialist in his office (TDS, Fort Rucker, AL) about difficulties he was having in regard to the Article 15 that is filed in his AMHRR.
a. The legal specialist noted that the applicant requested an appeal of the Article 15 on the same day he received the second reading. However, the blocks relating to consideration of the appeal were not completed. Thus, the Article 15 is incomplete.
b. On 24 April 2013, the legal specialist spoke with an official at the U.S. Army Human Resources Command (HRC) for guidance on removing the Article 15 from the applicant's AMHRR. The HRC official confirmed that the applicant would have to appeal to the Department of the Army Suitability Evaluation Board (DASEB) to transfer the DA Form 2627 or the Army Board for Correction of Military Records (ABCMR) to remove the DA Form 2627 from his AMHRR.
c. The major serving as the Senior Defense Counsel concluded that, "the opinion of this office [is] that the Article 15 OMPF filing was premature due to it being incomplete."
3. Counsel provides no additional documentary evidence in support of the applicant's request.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army (RA) on 20 November 1996.
2. He is currently serving on active duty in the RA as a sergeant first class (E-7).
3. A review of the applicant's AMHRR maintained in the interactive Personnel Electronic Records Management System (iPERMS) revealed a DA Form 2627, dated 8 January 2011, imposed as punishment for his misconduct at Bagram Airfield, Afghanistan, on 28 November 2010, for failing to obey a lawful general order by wrongfully being inside the room of a member of the opposite sex, with the door locked, in violation of Article 92, UCMJ.
4. The DA Form 2627 also shows the applicant was advised of his rights and afforded the opportunity to consult with counsel.
a. The applicant did not demand a trial by court-martial. He requested an open hearing. A person to speak in his behalf was not requested. He indicated that he did not present or attach matters in defense, mitigation, and/or extenuation to the DA Form 2627.
b. On 8 January 2011, in an open hearing, having considered all matters presented, the Commander, Task Force Falcon, found the applicant was guilty of the misconduct.
c. Item 6 (The following punishment is imposed) shows "Forfeiture of $1,985.00 pay per month for one month and an oral reprimand."
d. Item 4b shows the imposing authority directed the DA Form 2627 be filed in the performance section of the applicant's OMPF (AMHRR).
e. Item 5 shows that the applicant placed his initials in the block "I appeal and submit additional matters," he entered the date as "8 January 2011" and he placed his signature on the document.
f. It also shows that item 7 (I have considered the appeal and it is my opinion that:); item 8 (After consideration of all matters presented in the appeal, the appeal is:); and item 9 (I have seen the action taken on my appeal) are blank
(no entries).
g. Item 10 (Allied Documents and/or Comments) shows:
* AR 15-6 Investigation Report
* FLAG (DA Form 268)
* Enlisted Record Brief (ERB)
5. The DA Form 2627 is filed in the performance section of the applicant's AMHRR. The allied documents are filed in the restricted section of his AMHRR.
6. On 13 July 2011, the applicant was notified by the Chief, Enlisted Promotions, Promotion Branch, HRC, that a STAB convened on 7 June 2011 and recommended his removal from the Fiscal Year 2011 MSG Selection List, and the Director of Military Personnel Management approved the recommendation.
7. Army Regulation 600-8-104 (Army Military Human Resources Records) provides policies, operating tasks, and steps governing the AMHRR. Depending on the purpose, documents will be filed in the AMHRR in one of six sections: performance, service, restricted, medical, other, or State/Territory. Table B-1 (Authorized Documents) provides guidance for filing the DA Form 2627. The
DA Form 2627 will be filed in either the performance or restricted section of the AMHRR, as directed by item 5 of the DA Form 2627.
8. Army Regulation 27-10 (Military Justice), chapter 3 (Nonjudicial Punishment (NJP)), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial. Chapter 3 governs nonjudicial punishment.
a. Section VI (Appeals), paragraph 3-29 (General) provides that:
(1) once the Soldier has submitted an appeal, including all pertinent allied documents, the appeal normally should be decided within 5 calendar days; and
(2) a reasonable time will vary according to the situation; however, an appeal (including all documentary matters) submitted more than 5 calendar days after the punishment is imposed will be presumed to be untimely, unless the superior commander, in the superior commander's sound discretion for good cause shown, determines it to be timely.
b. Paragraph 3-31 (Procedure for submitting an appeal) provides that all appeals will be made on DA Form 2627 or DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ) and forwarded through the imposing commander or successor-in-command, when applicable, to the superior authority. The superior authority will act on the appeal unless otherwise directed by competent authority. The Soldier may attach documents to the appeal for consideration. A Soldier is not required to state reasons for the Soldiers appeal; however, the Soldier may do so. For example, the person may state the following in the appeal:
(1) Based on the evidence the Soldier does not believe the Soldier is guilty.
(2) The punishment imposed is excessive, or that a certain punishment should be mitigated or suspended.
c. Paragraph 3-32 (Action by the imposing commander or the successor-in-command) provides that the imposing commander or the successor-in-command may take any action on the appeal with respect to the punishment that the superior authority could take. If the imposing commander or a successor-in-command suspends, mitigates, remits, or sets aside any part of the punishment, this action will be recorded in item 8 of DA Form 2627, or item 5 of DA Form 2627-1. The appellant will be advised and asked to state whether, in view of this action, the appellant wishes to withdraw the appeal. Unless the appeal is voluntarily withdrawn, the appeal will be forwarded to the appropriate superior authority. An officer forwarding the appeal may attach any matter in rebuttal of assertions made by the Soldier. When the Soldier desires to appeal, the imposing commander, or the successor-in-command, will make available to the Soldier reasonable assistance in preparing the appeal and will promptly forward the appeal to the appropriate superior authority.
d. Paragraph 3-33 (Action by the superior authority) provides that the action by the superior authority on appeal will be entered in item 8 on DA Form 2627, or item 5 on DA Form 26271. A superior authority will act on the appeal expeditiously. Once the Soldier has submitted an appeal, including all pertinent allied documents, the appeal normally should be decided within 5 calendar days (3 days for summarized proceedings). The superior authority may conduct an independent inquiry into the case, if necessary or desirable. The superior authority may refer an appeal in any case to a Judge Advocate for consideration and advice before taking action; however, the superior authority must refer an appeal from certain punishments to a Judge Advocate, whether or not suspended (see note 9, DA Form 2627). In acting on an appeal, the superior authority may exercise the same powers as may be exercised by the imposing commander or the imposing commanders successor-in-command. A timely appeal does not terminate merely because a Soldier is discharged from the Service. It will be processed to completion by the superior authority.
e. Section VII (Records of Punishment, DA Form 2627), paragraph 3-36 (Records of punishment) provides that all actions taken under UCMJ, Article 15, including notification, acknowledgement, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, will be recorded on DA Form 2627. The DA Form 2627 is a record of completed actions and either the DA Form 2627 or a duplicate as defined in Military Rules of Evidence 1001(4) may be considered for use at courts-martial or administrative proceedings independently of any written statements or other documentary evidence considered by an imposing commander, a successor, or a superior authority.
9. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the DA Form 2627, dated 8 January 2011, and the allied documents that are filed in his AMHRR should be removed because the DA Form 2627 is incomplete due to the fact that he was never given an opportunity to appeal the NJP to the appeal authority.
2. The evidence of record shows, on 8 January 2011, the applicant placed his initials in the block "I appeal and submit additional matters." There is no evidence of record, and the applicant fails to provide any documentary evidence in his request to this board, that shows the additional matters he submitted in appeal of the NJP. However, this is not the overriding issue in this case.
3. The evidence of record shows that all actions taken under UCMJ, Article 15, including action on appeal, or any other action taken prior to action being taken on an appeal (emphasis added) will be recorded on the DA Form 2627.
4. The DA Form 2627 this is filed in the applicants AMHRR shows the following items are blank (no entries):
* item 7 (I have considered the appeal and it is my opinion that)
* item 8 (After consideration of all matters presented in the appeal, the appeal is)
* item 9 (I have seen the action taken on my appeal)
5. By regulation, in order to remove a DA Form 2627 from the AMHRR, there must be compelling evidence to support its removal. The evidence of record shows that the DA Form 2627 that is under review is not properly completed.
6. Therefore, in view of the facts of this case, it would be appropriate to correct the applicant's record by removing from the performance section of his AMHRR the DA Form 2627, dated 8 January 2011, and all allied documents related to the DA Form 2627 that are filed in the restricted section of his AMHRR.
BOARD VOTE:
___x____ ___x____ ___x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 from his Army Military Human Resource Record the DA Form 2627, dated 8 January 2011, and all allied documents that are filed in the performance and restricted sections of his Army Military Human Resource Record.
2. To ensure this decision results in no unintended harm to the individual concerned, this Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing. The Record of Proceedings and associated documents will not be filed in the individual's Army Military Human Resource Record.
_______ _ _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) AR20130009782
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