IN THE CASE OF:	

		BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20130012687 


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:

	a.  removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 17 January 2006, from his Army Military Human Resource Record (AMHRR); and 

	b.  removal from the Qualitative Management Program (QMP) List. 

2.  The applicant states:

	a.  The "Soldier's" copy of this Article 15 was erroneously filed in his AMHRR. After the final reading of this Article 15, the command chose to keep it local and not process it.  He was advised of this decision by his command sergeant major (CSM).  The unit did not retain any copies.  The only copy that was retained is his own, personal copy, marked with "Soldier's copy."  He accidentally submitted this copy for filing while updating his Enlisted Record Brief.  There is no unit copy submitted or is available.

	b.  He noticed in March 2008 that the Article 15 had been erroneously filed.  After speaking with his personal sergeant, he was under the impression that this error would not materially affect his career.  This was obviously an error.  Nevertheless, he believes since his placement on the QMP List was a result of an erroneously filed document, it is in the interest of justice to remove it. 

	c.  The Article 15 is untrue in whole because after the command read the Article 15, he was provided with his own personal copy.  He was specifically told by the CSM that it would be filed locally.  The unit never processed it as evidenced by the fact that the filed copy contains "Soldier's copy" on it that clearly means it is filed in error and by accident.

3.  The applicant provides:

* contested Article 15
* QMP notification memorandum, appeal memorandum, and final decision
* Noncommissioned Officer Evaluation Reports (NCOER)
* award certificates and orders
* academic evaluation reports

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army from July 1984 to March 1996, the applicant enlisted in the New Jersey Army National Guard (NJARNG) in the rank/grade of staff sergeant (SSG)/E-6 on 7 June 1996.  He held military occupational specialty (MOS) 95B (Military Police).

2.  He served with the 3rd battalion, 112th Field Artillery and he executed a
6-year extension of his ARNG enlistment on 2 May 1999.  He was promoted to sergeant first class (SFC)/E-7 on 11 May 2004 and he entered active duty on 25 October 2004.  He held MOS 25Y (Communications Specialist).

3.  On 16 March 2006, he changed components and he enlisted in the Regular Army.  He followed this enlistment with a reenlistment on 7 December 2011.  At the time of his incident in March 2005 leading to the contested Article 15, he was assigned to the 8th Ordnance Company, 7th Transportation Battalion, Iraq.

4.  On 17 January 2006, while holding the rank/grade of SFC/E-7 and serving in Iraq, the applicant accepted nonjudicial punishment (NJP) in a closed hearing under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful general order on or about 4 March 2005 by wrongfully possessing pornographic material.  The Article 15 was imposed by a brigadier general.  His punishment consisted of a forfeiture of pay.

5.  Item 5 of the contested Article 15 shows the imposing commander directed filing of the original DA Form 2627 in the performance section of the applicant's AMHRR.  The applicant elected not to appeal his punishment.  A review of his 

AMHRR reveals the contested Article 15 was filed in the performance section of his AMHRR on 8 February 2007.

6.  On 31 January 2006, the NJARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20 year letter).

7.  There is no indication he petitioned the Department of the Army Suitability and Evaluation Board to transfer the contested Article 15 from the performance section to the restricted section of his AMHRR.

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

* Awarded the NATO Medal for service in Afghanistan from November 2006 to April 2007
* Awarded the Bronze Star Medal and North Atlantic Treaty Organization (NATO) Medal for meritorious service in Afghanistan from December 2009 to December 2010
* Reenlisted in the Regular Army on 7 December 2011
* Received multiple NCOERs that rated him among the best and/or superior

9.  On 20 March 2013, by memorandum, the U.S. Army Human Resources Command (HRC) notified the applicant that the QMP Selection Board had conducted a comprehensive review of his record for potential denial of continued service under the QMP and recommended the applicant be denied continued active service.  As a result, the Director of Military Personnel Management approved the QMP board's recommendation and he would be involuntarily discharged from the Army no later than 1 October 2013.  He was also advised of his rights and options.

10.  On 25 March 2013, the applicant acknowledged receipt of the QMP notification memorandum and indicated he desired to submit an appeal for retention on active duty.

11.  On 23 April 2013, he submitted an appeal and requested to be retained on active duty.  He elaborated on the contested Article 15; highlighted his career, achievements, awards, decorations, and evaluations; and attached multiple letters of support from senior officers and/or NCOs supporting his retention on active duty.

12.  On 3 June 2013, HRC responded to his appeal.  An official stated the Army policy identifies that only cases with material error, newly discovered evidence, or 

the subsequent removal of documents from the Soldier's AMHRR are eligible for QMP appeal.  The Army G-1 has identified that appeal requests would be validated in accordance with the rules established in Army Regulation 600-8-19 (Enlisted Promotions and Reductions), section IV, paragraph 4-13.  The applicant's appeal request did not meet the criteria set forth in Army regulation 600-8-19.

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 sergeant 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 Official Military Personnel File (OMPF).  Folders and documents previously authorized for filing in any part of the OMPF will remain in the AMHRR.  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 (iPERMS).  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.

15.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 19-11, states a Soldier denied continued service under the QMP may appeal the determination and request retention on active duty on the basis of improved performance and/or presence of material error in the Soldier’s record when reviewed by the selection board.  It also states a Soldier may submit only one appeal, requests for reconsideration of denied appeals are not authorized, and the Soldier may submit relevant material in support of the appeal.  Appeals are considered by QMP appeals boards normally conducted in conjunction with HQDA centralized promotion selection boards and will consider all information considered by the QMPL board and all information included in the appeal.  The mere fact that a Soldier’s performance has improved or that the Soldier’s file contains material error is not necessarily sufficient to overcome the reason for QMP selection.  The appeal board may determine that the reason for QMP selection still applies even in the light of the improved performance or correction of an error.  Successful appeals result in removal of the denial of continued service determination.

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 a 

closed Article 15 hearing.  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.

3.  Contrary to the applicant's contention that the imposing officer directed this Article 15 be filed locally, the evidence of record shows 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.  Regardless whether or not the contested Article 15 contains the entry "Soldier's copy," the fact remains that the imposing officer directed its filing in the performance section of his AMHRR.

4.  Contrary to his contention that this Article 15 is untrue, the evidence of record shows his Article 15 proceedings were conducted in accordance with law and regulation and the Article 15 is 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.

5.  Although it appears the applicant has taken positive steps since his incident and his performance has been excellent as evidenced by his NCOERs, deployments, and awards, 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.  The applicant violated a general order in a combat zone and he was punished for it.

6.  He was considered by a QMP board that did not recommend his retention on active duty.  Like a promotion selection board, a QMP board does not divulge the reason for non-selection.  Since the QMP board is not authorized to divulge the reasons for selection or non-selection of any Soldier, specific reasons for the board's recommendations are not known.  A non-selected NCO can only conclude that a selection board determined that his overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for retention and/or promotion.

7.  Since the applicant did not provide evidence that a material error had occurred in his case, he does not meet the criteria to appeal his QMP.  Furthermore, since he did not provide evidence that his non-retention by the QMP board was in error or unjust, there is no reason to remove his name from the QMP list.

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)                                         AR20130012687



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ABCMR Record of Proceedings (cont)                                         AR20130012687



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