BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130021381 


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 an Article 15 from his records.

2.  The applicant states:

	a.  In April 2010, he received a field-grade Article 15 from an Army National Guard unit while in his third deployment to Iraq.  The Article 15 was filed in the restricted folder of his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

	b.  This Article 15 does not correctly represent him or his character.  He did make an error in judgment, but he has worked really hard to overcome his mistake.  The majority of his chain of command feels the same.  All of his noncommissioned officer evaluation reports (NCOER's) show he is a dedicated and honest NCO.  There is no mention of any reduction or any derogatory information in any of his NCOER's.

	c.  Since the Article 15, he has regained his rank of staff sergeant (SSG) and has completed his bachelor's degree.  He is completely committed to retiring from the Army and going as far as he can in the enlisted ranks.

	d.  According to the new Qualitative Service Program (QSP) Board, the selection board will have access to the restricted folder which completely makes having a restricted folder useless.  The whole purpose of a restricted folder is to give those Soldiers like him who have made a one-time mistake to overcome that mistake and possibly be selected for promotion to a grade higher than SSG.

	e.  The chain of command that imposed the Article 15 felt that he was worthy of a second chance and he has done everything to prove them right.  He does not want to be selected for separation for a one-time mistake after 13 years of loyal service.  As he stated, he has worked really hard to overcome his past mistake.  Justice has been served.  He completed his punishment.  He does not think it is just to hold a one-time mistake over someone.  The purpose of the restricted folder is to give Soldiers another chance.  Allowing selection board access to those documents is not justice and is double jeopardy.

3.  The applicant provides copies of four DA Forms 2166-8 (NCOER) and the first page of a memorandum from the Department of the Army Office of the Deputy Chief of Staff, G-1, dated 17 September 2013, subject:  Considered Information and File Assessment Process for the Enlisted QSP Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) in pay grade E-1 on 28 March 1996.  He completed training and was awarded military occupational specialty (MOS) 75B (Personnel Administrative Specialist).  He served in Germany from 3 January 2000 through 1 January 2002.  He was promoted to SSG/E-6 on 1 March 2005.  He was discharged from the USAR on 4 December 2008.

2.  He enlisted in the Regular Army in pay grade E-6 on 6 December 2008.  He is currently serving in an active status.

3.  He provided a copy of an NCOER for the rating period 5 December 2009 through 31 July 2010 for his duties as a human resources sergeant (SGT) in MOS 42A (Human Resources Specialist) which shows he was rated as "Excellence," "Successful," and "Among the Best."

4.  On 27 March 2010, he was counseled for falsifying his Enlisted Record Brief (ERB).  He was advised that he was being flagged for adverse action and would be recommended for an Article 15.  He was also advised that continued conduct of this nature could result in initiation of a bar to reenlistment and administrative action, to include his separation from the service and/or punishment (Uniform Code of Military Justice (UCMJ) action).

5.  On 27 March 2010, a flag was initiated against him for adverse action.

6.  His restricted folder located in the integrated Personnel Electronic Records Management System contains a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) which shows he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, on 10 April 2010 during his period of service in Iraq for willingly and without authority altering a military document, his ERB, on or about 1 August 2009 by changing his primary MOS to 42A and his civilian education to reflect a 4-year degree.

7.  On 10 April 2010 in a closed hearing, he was found guilty of all specifications and his commander directed filing the Article 15 in the restricted folder of his AMHRR.  His punishment included reduction to pay grade E-5.

8.  He was reduced to pay grade E-5 on 10 April 2010.

9.  He also provided copies of the following NCOER's:

	a.  His NCOER for the rating period 1 August 2010 through 25 July 2011 for his duties as a squad leader in MOS 88M (Motor Transport Operator) shows he was rated as "Excellence," "Successful," and "Among the Best" and contained no derogatory information.

	b.  His NCOER for the rating period 26 July 2011 through 25 July 2012 for his duties as a human resources SGT in MOS 42A shows he was rated as "Excellence," "Successful," and "Among the Best" and contained no derogatory information.

10.  He was again promoted to SSG/E-6 on 1 July 2012.

11.  He further provided copies of the following:

	a.  An NCOER for period 26 July 2012 through 8 May 2013 for his duties as a squad leader in MOS 88M shows he rated as "Excellence," "Successful," and "Fully Capable" and contained no derogatory information.

	b.  The first page of a memorandum from the Department of the Army Office of the Deputy Chief of Staff, G-1, dated 17 September 2013, subject:  Considered Information and File Assessment Process for the Enlisted QSP Board, states selection boards would be provided Article 15 or other UCMJ actions received that had not been set aside by proper authority effective immediately.

12.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.

	a.  Chapter 3 provides that NJP 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 UMCJ may be set aside or removed upon determination that, under all the circumstances of the case, a clear injustice had resulted.

	b.  Paragraph 3-37b(1)a provides that the decision to file the original DA Form 2627 on the performance or restricted folder in the AMHRR will be made by the imposing commander at the time punishment in imposed.

	c.  Paragraph 3-43 contains guidance for transfer or removal of  DA Forms 2627 from the AMHRR.  Applications for removal of a DA Form 2627 from a Soldier's AMHRR based on error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  There must compelling evidence to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

	d.  Paragraph 7-2a provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

	e.  Paragraph 7-2b(1) provides that unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the applicant to provide substantial evidence that these conditions have been met.

13.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR Management Program and it composition.  This regulation states that once a document is placed in the AMHRR it becomes a permanent part of that record and will not be removed from or moved to another folder unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was issued an Article 15 in April 2010 for falsifying his MOS and level of higher education on his ERB.

2.  His NJP proceedings were conducted in accordance with law and regulation.  There is neither an error nor an injustice and there is no reason to set aside the Article 15.  There is no evidence of record and he provides insufficient evidence 

to show the DA Form 2627 is untrue or unjust, in whole or in part, to support its removal from his AMHRR.

3.  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.  Once placed in the AMHRR, the documents become a permanent part of that record and will not be removed from or moved to another folder unless directed by an appropriate authority.

4.  His contentions and the documents he submitted were carefully considered.  However, he had the opportunity to decline the Article 15 and demand trial by court-martial at the time it was issued.  He did not do so.  A commander's decision cannot or should not be reversed without compelling evidence indicating it was unlawful or egregiously unfair.  The applicant has presented no such evidence.

5.  Based on the seriousness of his offenses and absent evidence showing the Article 15 was improperly imposed, there is an insufficient evidentiary basis to support his request.  His dissatisfaction with the outcome of the Article 15 does not invalidate it.  He violated the UCMJ and he was punished for it.  Any negative impact of this NJP appears to be a natural result of his actions.

6.  Therefore, he is not entitled to relief in this case.

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)                                         AR20130021381



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ABCMR Record of Proceedings (cont)                                         AR20130021381



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