BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130018243 


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 DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 1 February 2012, from his Army Military Human Resource Record (AMHRR).

2.  The applicant states, in effect, his Article 15 is unjust for several reasons:

	a.  There was no concrete evidence, only perception to support its validity.

	b.  Athough he received an Article 15, he received no punishment.  There was no money taken, no extra duty, and no reduction in rank.

	c.  The Article 15 was placed in his AMHRR to hurt his career; however, he has been a stellar performer at all his duty stations to include the station where he received the Article 15.

	d.  While on recruiting duty he had ratings of "1/1" on his DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports (NCOER)) prior to the incident.  The NCOER he received during the incident had terrible ratings that were in no way a reflection of his performance; therefore, it should also be considered punishment.

	e.  As a result of the Article 15 he was not allowed to change his military occupational specialty (MOS) to 79R (Recruiter) and he was forced to leave recruiting duty and return to his original MOS.


3.  The applicant provides:

* a self-authored statement
* DA Form 2627
* 6 DA Forms 2166-8

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a Regular Army staff sergeant (SSG) in MOS 91C (utilities equipment repairer).  He was assigned to the U.S. Army Recruiting Battalion, Chicago, when he received the nonjudicial punishment (NJP) in question.

2.  On 1 February 2012, while holding the rank of SSG, and in an open hearing, he accepted NJP under the provisions of Article 15, UCMJ for three specifications of making false official statements to an investigating officer; creating an actual or clearly predictable adverse impact on discipline, authority or morale within the recruiting station command; and assaulting another SSG.  These offenses were in violation of Articles 107, 92, and 128 of the UCMJ.  His punishment consisted of reduction to the grade of E5 and a forfeiture of pay per month for 2 months, both suspended to be automatically remitted if not vacated before 31 May 2012.

3.  The DA Form 2627 he was furnished shows he elected not to demand trial by court-martial and he did not elect to submit an appeal to the Article 15 or to submit additional matters.  His commanding officer directed the DA Form 2627 be filed in the performance section his AMHRR.

4.  A review of his AMHRR reveals the DA Form 2627 is, in fact, filed in the performance folder of his record.

5.  On 25 June 2013, the applicant requested the Department of the Army Suitability Evaluation Board (DASEB) transfer the Article 15 to the restricted folder of his AMHRR.  On 30 September 2013, after careful consideration, the DASEB voted to deny transfer of the Article 15 to the restricted folder of his AMHRR.

6.  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.  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 filing of NJP and provides 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 carefully weigh 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 3-37b(2) 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 or restricted folder 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 be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

7.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.

	a.  This regulation states that depending on the purpose, documents will be filed in the AMHRR in one of three folders:  performance, service, or restricted.  This regulation shows the DA Form 2627 is filed in either the performance or restricted section of the AMHRR, as directed in item 5 of the DA Form 2627.

	b.  The restricted folder of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command (HRC), or the Department of the Army Headquarters selection board proponent.  This regulation also provides that documents in the restricted folder of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant violated the UCMJ while serving as a SSG and subsequently accepted NJP on 1 February 2012.  Although he stated there was no concrete evidence, implying he was innocent of the charges, he did not demand trial by court-martial to prove his innocence.  The imposing commander directed filing the Article 15 in the performance folder of his AMHRR; the applicant elected not to appeal.  As such, the subject Article 15 is currently and properly filed in his AMHRR.

2.  The contentions made by the applicant have been noted; however, he provides insufficient evidence to show he was erroneously issued the Article 15, that it is inappropriately filed in his AMHRR, or that the punishment imposed against him was improper (and punishment was imposed, even if only suspended).

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

4.  The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be 


removed from or moved to another part of the AMHRR unless directed by an appropriate authority.

5.  The applicant appears to believe the presence of this Article 15 in the performance folder of his AMHRR may impact his career.  While this may be true, when an NJP action reflects moral turpitude or lack of integrity, or evidence of character deficiency or substantial breach of military discipline, the interests of the Army are compelling and in such cases the record should be filed in the AMHRR.

6.  The applicant has not demonstrated the NJP action was unjust or untrue, that the NJP should be removed because of the length of time, or that its removal would be in the best interest of the Army.

7.  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)                                         AR20130018243



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130018243



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1