IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130022397 


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, restoration of his original date of rank (DOR) to private first class (PFC)/E-3 and all due back pay as a result of this correction. 

2.  He states he was given an Article 15 (nonjudicial punishment (NJP)) in December 2012 which included reduction to the grade of private (PVT)/E-2.  This portion of the punishment was suspended; however, he was reduced in grade nonetheless. 

3.  The applicant adds that the Article 15 clearly stated that the portion of the punishment pertaining to the reduction in grade was suspended.  Although no one actually removed his rank from his uniform, he started receiving pay at the reduced grade of PVT/E-2 in January 2013.  

4.  He states he has no knowledge as to why this happened but it is clear that someone processed the punishment stated in the Article 15, even though the same had been suspended and eventually vacated.

5.  The applicant provides:

* a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 10 December 2012
* copies of 15 Leave and Earnings Statements (LES) from check date (CHK DT) 121214 (14 December 2012) to CHK DT 131220 (20 December 2013)
* a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 January 2013
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Puerto Rico Army National Guard (PRARNG) on 7 May 2012 in the grade of PFC/E-3.  He is currently serving as an M-Day Soldier in the grade of specialist (SPC)/E-4 with the PRARNG.

2.  He entered active duty on 20 August 2012 for the purpose of attending initial entry training (IET).  

3.  He provided and his Official Military Personnel File (OMPF) in the Interactive Personnel Electronic Records Management System (iPERMS) contains a copy of the DA Form 2627, dated 10 December 2012.  

* This form shows on page 1:

* he was serving in the grade of PFC/E-3 at the time the NJP was administered
* he was derelict in the performance of his duties on or about 
5 December 2012 in that he negligently failed to stay awake and alert on fireguard duty
* the applicant's initials are in the blocks indicating:

* he did not demand trial by court-martial
* he requested a closed Article 15 hearing
* he did not request a person to speak on his behalf
* any matters in his defense would be presented in person by him

* in item 4a - the administering officer (company commander) initialed the blocks indicating the applicant was guilty of all specifications and the hearing was closed
* in item 4b (I direct the original DA Form 2627 be filed in the:) - the company commander placed an "x" in the Not Applicable (NA) block as the Soldier was an E-4 or below at the start of proceedings  
* in item 5 - the applicant signed the form and initialed the block indicating he did not appeal the findings and/or punishment 

* Page 2 of the DA Form 2627 shows the following in item 6 (The following punishment is imposed):

* reduction to PVT/E-2, suspended, to be automatically remitted if not vacated before 23 January 2013
* forfeiture of $389.00 pay, suspended, to be automatically remitted if not vacated before 23 January 2013
* extra duty for 14 days; restriction to the limits of company area, dining/medical facility, and place of worship for 14 days

4.  The applicant provided a DD Form 214 that shows he was released from active duty training on 24 January 2013 in the grade of PFC/E-3 and transferred to the PRARNG. 

5.  He provided 14 LESs that show he was paid at the grade of PFC/E-3 for CHK DT 121214 (14 December 2012) and CHK DT 121231 (31 December 2012).  However, beginning with CHK DT 130118 (18 January 2013) through CHK DT 130719 (19 July 2013) he was paid at the PVT/E-2 rate.  His pay for PFC/E-3 resumed with CHK DT 130730 (30 July 2013).

6.  The Deductions and Remarks sections of the LESs he provided do not show he forfeited any pay in conjunction with his reduction to PVT/E-2.

7.  His record contains two DA Forms 4187 (Personnel Action) showing he was promoted to the grade of PFC/E-3 on 3 July 2013 and advanced to the grade of SPC/E-4 on 15 June 2014.

8.  Email traffic from the Defense Finance and Accounting Service, dated 
8 August 2014, shows that the remarks on the Master Military Pay Account (MMPA) indicates he was "reduced per UCMJ dated 10DEC2012."  There were no other remarks in the MMPA for this action.

9.  A review of iPERMS shows the DA Form 2627, dated 10 December 2012, is filed in the "Restricted" section of the applicant's OMPF.  This form was stamped with "Received DEC 19 2012" and also contains several handwritten annotations along the borders:

* "NG" (National Guard)
* "E5/PR" (pay grade E5/Puerto Rico)
* "113/32 - suspended 130123" (unknown - end of suspension period)

10.  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.  

     a.  Paragraph 3-19 provides if a suspension of the reduction is vacated, the offender's date of rank in the grade to which reduced as a result of the vacation action is the date the punishment was originally imposed, regardless of the date the punishment was suspended or vacated.

	b.  Paragraph 3-21 states the date of imposition of NJP is the date in items 
4 and 5 on the DA Form 2627, or items 1 through 3 on the DA Form 2627-1 (Summarized Record of Proceedings under Article 15, UCMJ), as appropriate, are signed by the imposing commander.  This action normally will be accomplished on the day punishment is imposed.   A suspended reduction, later vacated, is effective on the date the vacation is directed (see paragraph 3-“19b(5)(b)” (i.e., 3-19b(6)(b)) for determination of date of rank).

     c.  Paragraph 3-37b(1) states that for Soldiers in the rank of SPC/E-4 or corporal/E-4 and below (prior to punishment), the original will be filed locally in the 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 the DA Form 2627 as "not applicable (N/A)."  For all other Soldiers, the original will be sent to the appropriate custodian listed in (2), below, for filing in the OMPF.

	d.  Paragraph 3-39 provides for the proper use of the DA Form 5110 (Article 15 - Reconciliation Log).  Execution of punishments of reduction and forfeiture of pay will be verified and documented by the mandatory use of the DA Form 5110 showing the punishment, dates verified, and initials of the verifying paralegal specialist.  After information is verified on the DA Form 5110, supporting finance documentation showing execution of the reduction or forfeitures, as well as the verification of OMPF filings by the OMPF custodian will be retained for 2 years after the date the punishment was imposed.

   e.  Paragraph 3-43 contains guidance for transfer or removal of the DA Form 2627 from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  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.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Chapter 10 covers reductions in grade.  It states reduction transactions for all grades will be submitted by the battalion human resources (HR) office.  Article 15 processing will contain the following actions:
	a.  A UCMJ, Article 15 log will be maintained at battalion level by the legal clerk.
	b.  A control copy of the UCMJ, Article 15 will be maintained at battalion level and verified by the battalion HR supervisor when a reduction transaction is required to be submitted.

	c.  Only those UCMJ, Article 15 cases containing forfeitures will be forwarded to finance.

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. Appendix B provides for documents authorized for filing in the OMPF and/or iPERMS.  Table B-1 states all UCMJ Article 15 documents and forms will be filed in accordance with Army Regulation 27-10.  No UCMJ Article 15 or supporting documents will be filed for E-4 and below.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was attending IET in the grade of PFC/E-3 at the time he was administered the NJP.  By regulation, this DA Form 2627 required filing only at the local level because he was serving in the grade of E-4 or below and this form properly depicts this.  It appears the DA Form 2627 was inadvertently forwarded for filing in the restricted section of his OMPF.  Therefore, the DA Form 2627, dated 10 December 2012 and all allied documents, should be completely removed from his OMPF.  

2.  In reference to the portion of his request pertaining to the restoration of his pay grade to PFC/E-3 and any due back pay:  The applicant has not shown through the evidence submitted that he has contacted the battalion S-1 of the IET unit of which he received the NJP to resolve the issue of the erroneous reduction or that his IET unit mistakenly sent the DA Form 2627 to DFAS.  

3.  In the case of reductions, a control copy of the UCMJ, Article 15 is required to be maintained at the battalion level and verified by the battalion HR supervisor when a reduction transaction is submitted.  These types of transactions will be verified and documented by the mandatory use of the DA Form 5110.  After information is verified on the DA Form 5110, the supporting finance documentation showing the execution of the reduction or forfeitures, as well as the verification of OMPF filings by the OMPF custodian, will be retained for 
2 years after the date the punishment was imposed.

4.  If in fact the reduction to PVT/E-2 was in error as the applicant alleges and not vacated for some other infraction which occurred before the end of the suspension period, the IET battalion S-1 should have maintained copies of the DA Form 5110 until December 2014 (2 years after punishment was imposed) and he should be able to obtain copies and/or resolve the erroneous reduction issue at that level.  

5.  The applicant can reapply to this Board if he is unable to resolve the issue at the IET unit level and with DFAS.  As such, this portion of his request should be denied. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the DA Form 2627, dated 10 December 2012, and all allied documents from the restricted section of his OMPF. 

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the restoration of his pay grade and any back pay.  



      _____________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)                                         AR20130022397





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ABCMR Record of Proceedings (cont)                                         AR20130022397



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