IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130020726 


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, in effect, that the record of her nonjudicial punishment (NJP) be removed from the Performance folder and the Restricted folder in her Official Military Personnel File (OMPF).

2.  The applicant states she wants her NJP to be permanently removed from her OMPF.  It is her understanding that it should not have been placed into both the Performance and Restricted folders but only in the restricted folder.  She believes the filing was unjust.  

     a.  It was not a true indication of her performance as a Soldier.  She was punished primarily on the basis of her accuser’s sworn statements.  She was informed that this constituted "truth" and unless she had a witness, which she did not, then her punishment would stand.  Her subsequent service has never altered in any way.  After the NJP was imposed, she received accolades and recognition for performance levels exceeding Army standards.  She believes this punishment was unjust and did not fit the problems discussed.  The incident occurred in November 2007.  Her side of the incident was not heard until it was presented to the commanding officer above her battalion commander.  She was poorly represented until she spoke with the commanding general.  It was apparent that the leadership would be supported despite statements from fellow team members who spoke on her behalf.  

   b.  Her performance as a Soldier never wavered.  She has won the regional competition for Career Counselor of the Year.  She received accolades for competing in the Best Warrior Competition and the Bataan Death March.  She always continued to set a standard above her peers.  She has completed her Bachelor's Degree.  She will have her MBA-Project Management (Master's Degree) completed in December 2013.  
   
   c.  She did not know that the NJP was not supposed to be placed in the Performance folder if it was also placed in the Restricted folder.  She has since learned that an NJP is only placed in the Performance folder if there is already an earlier NJP in the Restricted folder.  Learning this brought her to the realization that the filing in her case was unjust.  She wants the NJP removed from both folders based on her performance prior to the imposition of the NJP and on her continued high level of performance after such punishment.  The same leadership that recommended this punishment also gave her a high positive rating on her Noncommissioned Officer Evaluation Report (NCOER) prior to the incident.  She was subsequently rated by the same leadership and received untrue and derogatory ratings on her NCOER just before she made a permanent change of station (PCS) move.  Her PCS was to be to a location of her choice.  The imposing officer stated that he wanted her out of her current assignment to ensure there would be no negative repercussions because of the information she had disclosed.

3.  The applicant provides copies of:

* DA Form 2166-8 (NCOER) for January to September 2006
* DA Form 87 (Certificate of Training) Instructor Training course, for 4 to       8 June 2007
* DA Form 2166-8 for 1 October 2006 to 30 September 2007
* Certificate for award of the Army Commendation Medal dated 6 November 2007
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ),        dated 21 February 2008
* Memorandum, 81st Regional Readiness Command, dated 22 February 2008
* DA Form 2166-8 for 30 September 2007 to 30 April 2008
* Orders R-05-885111, U.S. Army Human Resources Command (HRC),          dated 29 May 2008
* DA Form 2166-8 for 1 May 2008 to 30 April 2009
* Certificate of Training, Armor Battalion Combatives Trainer Course,        11-15 May 2009
* Permanent Orders W-05-981117, HRC, dated 25 May 2009
* Certificate, Modern Army Combatives Level II Certification, dated            26 June 2009


* Certificate for award of the German Armed Forces Marksmanship Badge in Gold, dated 19 August 2009
* Memorandum, Fort McPherson, Georgia, authorizing wear of the German Armed Forces Marksmanship Badge, dated 16 November 2009
* Orders 321-011, Army Reserve Region 10, dated 17 November 2009
* Certificate of Training, Combatives Trainer Course, dated 6 February 2010
* DA Form 2166-8 for 1 May 2009 to 30 April 2010
* Certificate of Participation in the U.S. Army Reserve (USAR) Best Warrior Competition from 25-31 July 2010
* Certificate for BATAAN Memorial Death March, dated 27 March 2011
* DA Form 2166-8 for 30 April 2010 to 29 April 2011
* DA Form 87, Advanced Marksmanship Training, dated 9-11 May 2011
* DA Form 2166-8 for 30 April 2011 to 29 April 2012
* Permanent Orders W-05-280858, HRC, dated 25 May 2012
* DA Form 2166-8 for 30 April to 7 September 2012
* Unofficial Transcript, Jones International University, for November 2005 through September 2013
* Official Transcript, Jones International University, issued                           20 September 2012
* Certificate for award of the Meritorious Service Medal, dated 7 December 2012
* Certificate of Training, Structured Self-Development- Level 4,                dated 16 July 2013
* DA Form 2166-8 for 8 September 2012 to 7 September 2013
* Memorandum from applicant, Removal of iPerm Documents,               dated 9 October 2013
* AHRC Form 4143 (Enlisted Record Brief – AGR) dated 11 October 2013
* Email communications dated between 9 and 16 October 2013 concerning removal of applicant’s records

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.  At the time of her application, the applicant was serving as a sergeant first class (SFC), pay grade E-7, USAR, Active Guard Reserve.

3.  On 21 February 2008, while holding the rank/grade of SFC/E-7, the applicant accepted NJP under the provisions of Article 15, UCMJ for violating Article 91 by:

   a.  being disrespectful in language, deportment and demeanor toward a more senior NCO who was in the execution of his duties; and
   
   b.  willfully disobeying a lawful order from a more senior NCO
   
4.  Her punishment included a forfeiture of $546.00 pay.  The imposing commander directed filing the original DA Form 2627 in the Restricted folder of her OMPF.  The applicant did not appeal her punishment.

5.  A review of the applicant's OMPF confirmed the subject NJP is filed in the Restricted folder as directed by the imposing commander.  It was not found to be filed in the Performance folder or in any other folder of her OMPF.

6.  A review of the supporting documents provided by the applicant revealed that her performance of duty prior to the NJP was above average.  Her NCOER rendered for the period covering when she received NJP reported that she had been insubordinate and disobedient to her first line supervisor on several occasions.  She had created tension and distrust within the team and did not set the example for others to follow.  She was not committed and focused on the mission and frequently complained about the requirements.  She also had obtained and held a second job without her superior’s knowledge or approval.  Her subsequent NCOERs and various training and participation certificates clearly show her performance of duty as excellent.

7.  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 non-punitive 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 non-punitive 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.  It further states:

	a.  A commander's decision whether to file a record of NJP in the Performance or Restricted folder of a Soldier's OMPF 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.  For Soldiers in the ranks of SGT and above, the original copy of the NJP will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the Performance or Restricted folder of the OMPF 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.  Applications for the removal of the NJP from the OMPF based on an error or injustice will be submitted to the ABCMR.  It further states that there must be clear and compelling evidence to support removal of a properly-completed, facially-valid NJP from a Soldier's record by the ABCMR.

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.  

	a.  It identifies those documents that are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  Performance, Service, or Restricted.  It shows the NJP is filed in either the Performance or Restricted section of the OMPF as directed in item 5 of the NJP.

	b.  It provides that the Restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this folder is controlled.  It will not be released without written approval from the Commander, HRC, or the Department of the Army Headquarters selection board proponent.  This paragraph also provides that documents in the Restricted folder of the OMPF 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 OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her OMPF should be corrected by removing her NJP imposed on 21 February 2008 from the Performance and Restricted folders.  She implies that she did not get a fair and just hearing and that the commander just wanted her to be gone.  She argues, in effect, that the NJP has served its purpose, as evidenced by her continual excellent performance of duty.

2.  The evidence of record confirms the applicant accepted NJP for misconduct.  
The imposing commander directed filing the NJP in the Restricted folder of her OMPF.

3.  Her NJP proceedings were conducted in accordance with law and regulation and her NJP is properly filed in the Restricted folder of her OMPF as directed by the imposing commander.  There is no evidence of record and she provides none to show the contents of the NJP is untrue or unjust.

4.  The applicant has not provided any documentary evidence showing that any of the procedures surrounding her NJP were inappropriate or in error.  Her contention that her side of the story was not adequately explored is not proven by the available evidence.

5.  The applicant’s contention that a copy of the subject NJP was incorrectly filed in the Performance folder of her OMPF is found to be without merit.  A review of documents in the Performance folder of her OMPF failed to reveal a filing of the subject NJP.  Therefore, no action is required on this portion of her request.

6.  Documents filed in the Restricted folder of the OMPF are permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods.  This is to protect the interests of the Soldier and the Army.

7.  In order to remove a document from the Restricted folder of the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  In the absence of an error or an injustice, there is no reason to remove it from her records.

8.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130020726



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ABCMR Record of Proceedings (cont)                                         AR20130020726



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