BOARD DATE: 10 March 2015
DOCKET NUMBER: AR20140006839
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 from his Official Military Personnel File (OMPF) a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)).
2. The applicant states the Article 15 should be a local punishment and not follow the service member.
3. The applicant provides no additional evidence.
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. With prior enlisted service in the Regular Army (RA), the applicant reenlisted in the RA for 3 years on 30 July 2003, in pay grade E-2. He is currently on active duty due to continuous reenlistments. He has been promoted through the ranks to pay grade E-6.
3. The applicant was assigned to Fort Benning, GA on 14 March 2011, when he accepted nonjudicial punishment (NJP) for being derelict in the performance of his duties and for negligently failing to monitor the Expert Infantryman Badge (EIB) Tactical Operations Center at Shelby Hill. The DA Form 2627 he received shows he elected not demand trial by court-martial and in an open hearing, he pled guilty of all specifications. His commanding officer directed that the DA Form 2627 be filed in the restricted section of his OMPF.
4. A review of the restricted section of the applicant's OMPF shows the DA Form 2627 contained therein.
5. Army Regulation 27-10 (Military Justice) provides the applicable policies for administration of NJP. The regulation states that NJP may be imposed to correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldiers record of service from unnecessary stigma by a record of court-martial conviction; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627. The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a Soldiers record.
a. Chapter 3 states that a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment if punishment is appropriate.
b. Paragraph 3-18(l) states that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s). If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier. The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted.
2. However, according to the applicable regulation, all Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627.
3. The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a Soldiers record.
4. The DA Form 2627 he received shows he elected not to demand trial by court-martial and in an open hearing, he pled guilty of all specifications. His commanding officer directed that the DA Form 2627 be filed in the restricted section of his OMPF and the applicant has failed to show error or injustice in the action taken by the Army in his case.
5. The fact that he believes that the Article 15 should have been filed locally is an insufficient justification for granting the requested relief.
6. 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.
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