IN THE CASE OF:	

		BOARD DATE:	    29 April 2014

		DOCKET NUMBER:  AR20130013731 


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 a record of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), and any related negative documentation from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states he has been separated from the military for a few years and is in the process of improving his life.  The negative aspects in his permanent military record are hindering his ability to move forward with his life and for his career with possibly a government job or a job that requires an in- depth background check.  He had a difficult time in the Army finding like-minded people he could have meaningful relationships with.  He has grown up a lot and regrets his past mistakes.  He has a network security job.  He also has a 50% disability rating from the Department of Veterans Affairs (VA).  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a VA service-connected disability compensation certification letter.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 10 January 2008, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank he held was private first class/pay 
grade E-3.

3.  The applicant's AMHRR contains several documents related to multiple incidents of misconduct.  These include the following documents.

	a.  Two DA Forms 2823 (Sworn Statement), dated 18 June 2009, completed by two noncommissioned officers (NCO) describe an incident in which the applicant used disrespectful language toward one of those NCOs.

	b.  A DA Form 4856 (Developmental Counseling Form), dated 18 June 2009, shows he was given event-oriented counseling by a first sergeant at the Light Fighter School for violating Article 91, UCMJ, by being insubordinate toward an NCO.  A summary of the counseling shows the applicant was being released from the Heavy Weapons Tactical Rifle Course for his insubordinate attitude toward an NCO within the course.  Additionally, it was reported that his behavior and attitude for the entire week at the course was questionable and argumentative.  The applicant agreed with the information contained in the counseling and signed the form.

	c.  A DA Form 4856, dated 18 June 2009, shows he was given event-oriented counseling by a first sergeant for multiple incidents of failing to conduct himself professionally and with discipline after he used disrespectful language toward an NCO.  The first sergeant stated that as a result of that incident he was recommending to the company commander that the applicant receive punishment in the form of an Article 15.

	d.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows the applicant's battalion commander imposed NJP against him on 28 July 2009 for being disrespectful in language toward a noncommissioned officer and for stealing a Seal Pup knife, the property of the Army and Air Force Exchange System.  His punishment was reduction to private/E-1, forfeiture of $699.00 pay per month for 2 months, extra duty for 45 days, restriction for 45 days, and an oral reprimand.  The applicant appealed the NJP.  He did not submit additional documentation within the allotted 5 days for him to do so.  His appeal was denied.  The form shows that allied documents and or comments were two DA Forms 4856, DA Form 3975 (Military Police Report), DA Form 268 (Report to Suspend Favorable Actions), and his Enlisted Record Brief.  It further shows the form would not be filed in the applicant's AMHRR because he was an E-4 or below at the start of the proceedings.

4.  His AMHRR contains the case file for his approved administrative separation.  The documents in paragraph 3 above are included in that case file.

5.  He was honorably discharged from active duty on 22 January 2010 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17.  He completed 2 years and 13 days of creditable active service.

6.  He provides a copy of a VA service-connected disability compensation certification letter.

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to 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 3-28a states the basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of 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.

	b.  Paragraph 3-37a states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  

	c.  Paragraph 3-37b(1) states for Soldiers who are at the rank of specialist or corporal and below (prior to punishment) the original will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 4b of DA Form 2627 as "not applicable (N/A)."

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program.  It states that once placed in the AMHRR, a document becomes a permanent part of that file.  The document will not be removed from the AMHRR or moved to another part of the AMHRR unless directed by competent authority.  Appendix B-1 states case files for approved separations will be filed in the service folder of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of a record of NJP from his AMHRR.

2.  The Article 15 proceedings were conducted in accordance with law and regulation.  The NJP and allied documents would not normally be filed in his AMHRR.  However, the DA Form 2627 documenting his Article 15 proceedings and allied documents are part of the case file for his approved separation, which is required to be filed in his AMHRR.

3.  The ABCMR does not grant requests for changes to Army records solely for the purpose of potentially improving an applicant's life or career opportunities.  Every case is individually decided based upon its merits. 

4.  There is no documentary evidence of error or injustice in the imposition of the NJP or the inclusion of the NJP related documents in his approved separation case file.  Therefore, there is an insufficient basis upon which to grant the 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)                                         AR20130013731



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ABCMR Record of Proceedings (cont)                                         AR20130013731



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