IN THE CASE OF:	  

		BOARD DATE:	  24 October 2013

		DOCKET NUMBER:  AR20130016295 


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), from the restricted folder of his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  He states he went out to lock the gates on time, but there was a problem with the lock and keys.  He was later reminded, and he went out to lock the gates.  He states there were extenuating and mitigating circumstances that were not considered involving the fire department and an ambulance at the barracks.  His first sergeant and company commander told him to move on to his next duty station.  His battalion commander deferred his orders until he returned from Afghanistan to "read" him.  He states he was "read" four times by four different senior noncommissioned officers (NCO's).  He submitted a brief written statement to his S-1 who said the statement was submitted.  He also indicated in the record that he chose to make a statement and he did.  When he reviewed his AMHRR, he realized his statement was not attached in the record.

3.  He provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  With 12 years, 8 months, and 16 days of prior active service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 2 April 2008 in the rank/pay grade of staff sergeant (SSG)/E-6.  He was trained in and awarded military occupational specialty 88M (Motor Transport Operator).  He is currently serving as a SSG/E-6.

2.  The restricted folder of his AMHRR contains several documents related to an incident that took place on 22 December 2011.

	a.  A DA Form 4856 (Developmental Counseling Form), dated 29 December 2011, shows he was given event-oriented counseling by the S-3 Operations NCO in Charge (NCOIC) for violating Article 92, UCMJ, by failing to obey an order and violating Article 134, UCMJ, by falling asleep on duty and failing to secure the battalion area.  A summary of the counseling shows he had been caught sleeping on duty on 22 December 2011 while he was tasked with battalion staff duty responsibilities as the NCOIC.  He also failed to secure battalion areas that he had been briefed to secure.  He indicated he disagreed with the information provided.  The block for his signature indicates there was an attachment to the counseling.  The attachment is not filed in his AMHRR and it is not available for review.

	b.  A DA Form 268 (Report to Suspend Favorable Actions (Flag)), dated 29 December 2011, shows his company commander initiated a flag against him for adverse action.

	c.  A DA Form 4856, dated 12 January 2012, shows a master sergeant/E-8 counseled him for dereliction of duty as the battalion staff duty NCOIC.

		(1)  The senior NCO providing the counseling stated:

* the applicant had ignored the orders of the brigade staff duty NCOIC on 22 December 2011 by failing to secure the motor pool gates
* the staff duty NCO memorandum of instruction, dated 5 December 2011, stated that the staff duty NCO would ensure that all motor pool gates were secured by 1900 hours daily and remained secure until 0530 hours
* recent break-ins and thefts had caused battalion and brigade leadership to be adamant about property accountability and physical security
* the applicant's failure to ensure the motor pool gates were secure was a dereliction of duty and failure to follow an order was punishable under the UCMJ

		(2)  The senior NCO providing the counseling recorded a plan of action to initiate a flag and recommend UCMJ action.  The applicant refused to sign the form.

	d.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows the applicant's battalion commander imposed NJP against him on 1 February 2012 for being derelict in the performance of his duties on 22 and 23 December 2011 by failing to secure all motor pool gates as it was his duty to do.  His punishment was extra duty for 45 days and an oral reprimand.  The applicant did not appeal the NJP.  The imposing authority directed filing the DA Form 2627 in the restricted folder of the applicant's AMHRR.

3.  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.  Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folders in the AMHRR will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by superior authority.  For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the AMHRR.

4.  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.


DISCUSSION AND CONCLUSIONS:

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

2.  With regard to the decision to impose NJP, there is no evidence that he was deprived of his right to present matters in defense, extenuation, or mitigation or that he was deprived of his right to appeal the NJP.

	a.  He states there were extenuating and mitigating circumstances that were not considered in the decision to impose NJP against him.  He has not submitted documentary evidence of any such circumstances and his records contain no such evidence.  It is noted that he did not appeal the NJP.

	b.  He indicates a statement he submitted is not included in his records.  A review of his records shows an attachment to a counseling statement is missing and it appears this may be the missing statement to which he refers.  While it is unfortunate that his response to counseling was not filed, there is no evidence indicating the absence of this statement has resulted in an injustice.

3.  The DA Form 2627 documenting his NJP was filed in the restricted folder of his AMHRR as directed by the imposing authority.  There is no documentary evidence of error or injustice in the imposition of the NJP or in the filing decision.  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 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)                                         AR20130016295



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ABCMR Record of Proceedings (cont)                                         AR20130016295



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