IN THE CASE OF:	  

		BOARD DATE:	 24 July 2014 

		DOCKET NUMBER:  AR20140008630 


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/deletion of an Article 15 from the restricted folder of his official military personnel file (OMPF).

2.  The applicant states:

   a.  Army Regulation 600-37 (Unfavorable Information) allows such transfer/removal when:

		(1)  The reprimand has served its intended purpose or is untrue or unjust in whole or in part;

		(2)  Has been in the OMPF for at least one year since imposition of the reprimand;

		(3)  The Soldier is at least a staff sergeant (SSG); and

		(4)  Has received at least one performance evaluation since the filing of the reprimand.

   b.  The Article 15 was directed to be placed in his record on "4" (i.e., 16) April 2002.  He did not receive any punishment and both the extra duty and one month forfeiture of pay were suspended.  It has been more than 12 years since the Article 15 was posted to his OMPF.  He has received 15 noncommissioned officer evaluations (NCOER) since the imposition of the Article 15 and they all were rated either "fully capable" or "among the best."
   c.  This Article 15 was administered after Lieutenant Colonel (LTC) Mxxxxxx, his battalion commander, saw him moving his vehicle in the field without an escort to Daley Hill to conduct a survey mission.  LTC Mxxxxxx stopped him and explained to him that during the training exercise no one was supposed to move alone.  He received a mission from the Tactical Operations Command that Charlie Battery needed survey support as soon as possible and he needed to move out, so that is what he did to meet the mission requirements.  As he was traveling, the battalion commander again saw him traveling alone and this time the battalion commander made it clear to him that he had disobeyed his lawful order and he would be punished.

   d.  He believes the Article 15 has served its intended purpose because he understands firsthand the pain of consequences of the military field-grade Article 15 process.  He is now that much more careful to not only meet the intent of any commanders' orders, but also the appearance of right and correct action and he will be appropriately so for the remainder of his life.  Since then it has been twelve years and he has provided leadership and oversight with experienced discernment.

   e.  He argues that it is in the best interest of the Army to remove the Article 15 from his records.  He has served honorably his entire career as demonstrated by every NCOER over nineteen years without a single incident of any type of derogatory performance.  Since the Article 15 was directed to be placed in his files, he has continued to serve honorably.  In the years that have passed, he had done everything within his power to continue to demonstrate his commitment to honest and dedicated service to the Army and his personal and professional growth.  His career accomplishments are:

		(1)  He achieved the Distinguished Honor Graduate during the Senior Leaders Course (SLC) for Field Artillery (FA) Surveyor Meteorological SLC 035-10;

		(2)  He graduated from the U.S. Army Battle Staff NCO Course;

		(3)  He was promoted to sergeant first class (SFC) after only 12 years of service.  Sixty SFCs were eligible, only 16 were selected, and he was number 10 out of the 16 that made the selection list;

		(4)  He was assessed as "Among the Best" by different raters on all NCOERs as a SSG and SFC;

		(5)  He was awarded the U.S. Army Recruiters Gold Badge for excellence in recruiting for America's Army;
		(6)  He was awarded 6 awards of the Army Commendation Medal, 3 awards of the Army Achievement Medal, and 5 awards of the Army Good Conduct Medal;

		(7)  He completed 3 combat deployments in Iraq (13 months), Afghanistan (12 months), and Kuwait (9 months); 

		(8)  He most recently received a Senior Rater bullet as being the best SFC in the battery for 2 years in a row from two different units; 

		(9)  He has received across the board exemplary NCOERs throughout his career; and

		(10)  He has consistently scored 260 and above on his Army Physical Fitness Tests throughout his career from the time he was in the advanced individual training to the present.

   f.  In light of the circumstances of his situation and having met the intended purpose of the Article 15, he respectfully requests that this petition be granted.

3.  The applicant provides copies of the following:

* Enlisted Record Brief (ERB)
* Permanent Orders (PO) Number 016-08
* DA Form 4856-E (Developmental Counseling Form)
* Report to Suspend Favorable Personnel Action (FLAG)
* DA Form 2627 (Record of Processing Under Article 15, Uniform Code of Military Justice)
* U.S. Army Recruiter's Gold Badge certificate
* Orders Number 100-178
* Sling Load Inspector Certificate Course 860-54 certificate
* PO Number 126-02
* PO Number 195-01
* U.S. Army Recruiter's Gold Badge certificate
* Orders Number 100-178
* PO Number 126-02
* A Sling Load Inspector Certificate Course 860-54 certificate
* Orders Number 50-9
* two Army Commendation Medal certificates
* PO Number 225-02


* two DA Forms 1059 (Service School Academic Evaluation Report)
* four Army Commendation Medal certificates
* two Army Achievement Medal certificates
* five NCOERs
* Orders Number 50-9
* Memorandum for Record (MFR)
* Department of the Army (DA) photograph

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, in pay grade E-1, on 25 June 1998. 

2.  His record contains and he provided copies of the following:

   a.  PO Number 016-08, dated 16 January 2002, issued to award him the Army Good Conduct Medal for the period from 26 June 1998 through 25 June 2001.

   b.  A DA Form 4856-E, dated 8 March 2002, which shows he received counseling for failing to obey a lawful order on 28 February 2002 by not having another Soldier at a prescribed location at the prescribed time and his further poor judgment/duty performance resulting in further administrative action being initiated.

   c.  A FLAG which was initiated on 8 March 2002 for pending adverse action.

   d.  A DA Form 2627 which shows on 16 April 2002 he accepted nonjudicial punishment (NJP) under Article 15 for willfully disobey a lawful command to not move as a "lone vehicle" on or about 6 March 2002.  His punishment included a suspended, one month each, punishment of a forfeiture of pay and extra duty.  The punishment was to be automatically suspended it not vacated before 13 October 2002.  He did not appeal.  On the same day, the imposing authority directed the Article 15 be field in the restricted folder portion of his OMPF.

3.  His ERB shows he served in various duty assignments as a FA Surveyor, Recruiter, and Chief Surveyor.  He served in Iraq from 10 March 2003 through 5 April 2004.

4.  He also provided copies of the following:

   a.  An Army Commendation Medal certificate issued to him for exceptionally meritorious service from 13 April through 1 July 2003.  
   b.  PO Number 195-01, dated 13 July 2004, issued to award him the Army Good Conduct Medal for the period 24 June 2001 through 23 June 2004.

   c.  An U.S. Army Recruiter's Gold Badge certificate, dated 21 March 2007, issued to award him this badge.

   d.  Orders Number 100-178, dated 9 April 2008, issued to award him the Air Assault Badge for the period from 26 March through 9 April 2008.

   e.  PO Number 126-02, dated 6 May 2008, issued to award him the Army Good Conduct Medal for the period 24 June 2004 through 24 June 2007.

   f.  A Sling Load Inspector Certificate Course 860-54 certificate which shows he successful completed the course on 9 May 2008.

   g.  Orders Number 50-9, dated 19 February 2010, promoting him to SFC with an effective date and date of rank of 1 March 2010.

   h.  An Army Commendation Medal certificate issued to him for exceptionally meritorious service from 10 September 2007 through 30 June 2008.  

   i.  An Army Commendation Medal certificates issued to him for meritorious service from 1 July 2008 through 30 June 2009.  

   j.  PO Number 225-02, dated 13 August 2010, issued to award him the Army Good Conduct Medal for the period 25 June 2007 through 24 June 2010.

   k.  A DA Form 1059 which shows he completed the FA Surveyor Meteorological Crewmember SLC 035-10 on 24 September 2010.  He also provided the resulting certificate.

   l.  A DA Form 1059 which shows he completed the Battle Staff NCO Course on 9 September 2011.  He also provided the resulting certificate.

   m.  An Army Achievement Medal certificate issued to him for meritorious achievement from being selected as the Distinguished Honor Graduate of Class 035-10, SLC, from 24 August through 24 September 2010.  

   n.  An Army Achievement Medal certificate issued to him for exceptionally meritorious achievement from 7 to 25 February 2011.  

   o.  An Army Commendation Medal certificate issued to him for meritorious service from 12 November 2009 through 12 December 2011.  
   p.  PO Number 162-07, dated 11 June 2013, issued to award him the Army Good Conduct Medal for the period 25 June 2010 through 24 June 2013.

   q.  Five DA Forms 2166-8, dated from 2009 through 2013, which show he was rated as "Excellence," Success," and "Among the Best."

   r.  An MFR, dated 27 January 2014, wherein the Brigade Battle Captain, Headquarters and Headquarters Battery, 41st Fires Brigade, recommended the removal of the applicant's Article 15 from his permanent restricted record.  He stated that the Article 15 was written 12 years ago and all the actions were suspended.  The applicant worked for him as the Brigade Battle Staff NCO-In-charge, in Kuwait.  The applicant was selected by the Brigade S3 over 7 other SFCs to serve as the country lead for Jordan, coordinating key leader engagements, senior leader engagements, and live fire exercises for the 41st Fire Brigade.  He knew the applicant to be true team player who constantly assisted other staff sections in accomplishing their missions and training objectives and taking care of Soldiers' needs.

   s.  A DA Photograph

5.  His ERB shows he served in Afghanistan from 30 June 2008 through 28 June 2009.

6.  His record contains no evidence of any other derogatory information during his period of service from 2002 on.

7.  Army Regulation 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provided 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 was proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  If it was clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  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 addressed the filing of an NJP and provided that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF was 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.  

   b.  Paragraph 3-6 also stated that 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 had 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.
   
	c.  Paragraph 3-43 (current version of regulation) contains guidance on the transfer or removal of DA Forms 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 ABCMR.  There must be clear and compelling evidence which demonstrates errors or injustice to a degree justifying removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management provides policies, operating tasks, and steps governing the OMPF. This document states that only those documents listed in Table 2-1 and    Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed in Item 5 of the DA Form 2627.

9.  Army Regulation 600-8-104 also states once a document is placed in the OMPF become a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant accepted punishment under Article 15 on 16 April 2002 for disobeying a lawful command to not move as a "lone vehicle."  His punishment included a suspended forfeiture of pay and extra duty to be automatically suspended it not vacated before 13 October 2002.  The imposing authority directed the Article 15 be filed in the restricted portion of his OMPF.

2.  By regulation, there must be clear and compelling evidence which demonstrates errors or injustice to a degree justifying removal of a properly properly-completed, facially-valid DA Form 2627 from a Soldier’s records.  

3.  There is no evidence of records and he did not provide sufficient evidence or convincing argument that the NJP is untrue or unjust, in whole, or in part, to support his request that it be removed from his OMPF.  His assertions are insufficient to overcome the conclusions of the commander imposing the Article 15.  Absent any evidence meeting this regulatory standard, there is an insufficient evidentiary basis to grant the 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)                                         AR20140008630





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ABCMR Record of Proceedings (cont)                                         AR20140008630



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