IN THE CASE OF:	  

		BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20140016387 


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 correction of his military records by removal of a DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ) dated 
23 January 2013 from his Official Military Personnel File (OMPF).

2.  The applicant states he is requesting that the DA Form 2627-2 signed on 
23 January 2013 be completely removed from his OMPF based on the successful appeal of the Article 15 (nonjudical punishment (NJP)).  He contends, in effect, that this document was incorrectly completed and was subsequently replaced the following day.

3.  The applicant provides copies of:

* A Memorandum for Record, Assumption of Command, dated 20 October 2010
* A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated  1 March 2012
* A Memorandum, subject: Appointment as a Fact-finding Officer, dated23 October 2012
* A Memorandum for Record, Assumption of Command, dated16 November 2012
* A Memorandum, subject: Fact-Finding Officer regarding Negligenced during deployment, dated 26 November 2012
* A Memorandum, subject: Appeal of Imposition of NJP, dated 4 December 2012
* A Memorandum, subject: Appeal of Imposition of NJP…, dated 3 January 2013
* A DA Form 2627-2, dated 23 January 2013
* A DA Form 2627-2, dated 24 January 2013

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a staff sergeant, pay grade E-6.

2.  On 1 March 2012, the applicant accepted NJP for the following misconduct:

	a.  dereliction in the performance of his duties by willfully failing to properly account for stock in the 583rd Medical Logistics Company (MLC) warehouse; and

	b.  dereliction in the performance of his duties by failing to report stock discrepancies to the accountable officer.

3.  On 6 March 2012, the applicant's appeal of the punishment was denied.  The NJP was filed in the applicant's Performance Folder.

4.  On 23 October 2012, a fact-finding officer was appointed to investigate the facts and circumstances surrounding alleged improper or negligent operations in the MLC warehouse.

5.  On 26 November 2012, the fact-finding officer rendered the following conclusions of his investigation as it pertained to the applicant's misconduct:

	a.  The evidence used to justify the NJP could not be linked directly to the applicant nor could it be linked directly to his section.  The allegations were based on assumptions and the possibility that he was negligent.

	b.  There was no definitive proof the applicant was negligent in his duties as the storage noncommissioned officer of the warehouse.

	c.  No government property was lost.

6.  On 4 December 2012, the applicant appealed the imposition of his NJP.  He argued that there was no substantiating evidence showing he was guilty of any misconduct.  He never received quarterly counseling and was not made aware of any negligence on his part concerning the loss of supplies.  He requested that the NJP be totally set aside due to a lack of evidence and improper handling of the NJP.

7.  On 3 January 2013, the applicant's battalion commander stated in a memorandum that he had reviewed the applicant's appeal of the subject NJP and other associated actions.  The commander recommended revocation of the NJP and an immediate removal of the associated documents from the applicant's OMPF.  He also recommended reimbursement of the $801.00 surrendered as a result of the NJP; that the applicant's Army Good Conduct Medal be reinstated; and that the applicant be recommended for an end-of-tour award for his previous deployment.

8.  A DA Form 2627-2, dated 23 January 2013, indicates the supplementary action was "Mitigation by reimbursing $801.00 previously forfeited.  The superior authority directed filing in the applicant's Performance section of his OMPF.

9.  A DA Form 2627-2, dated 24 January 2013, indicates the supplementary action was "Setting Aside due to a clear injustice by reimbursing $801.00 previously forfeited.  The superior authority directed filing in the applicant's Performance section of his OMPF.

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 implements and amplifies Article 15, UCMJ.

	a.  It states that the basis for any set aside action is a determination that under all of the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear Injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

	b.  It further states that all DA Forms 2627 of commissioned officers, warrant officers, and enlisted Soldiers filed in the OMPF reflecting that punishments have been wholly set aside since 1 September 1979 will routinely be transferred to the restricted folder.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that a DA Form 2627-2, dated 23 January 2013 should be removed from his OMPF because it was incorrectly completed and was subsequently replaced the following day.

2.  The available evidence shows that the subject NJP was wholly set aside due to a clear injustice.  Accordingly, the NJP and all associated documents should be transferred to the restricted folder of his OMPF.

3.  Furthermore, the evidence is sufficiently convincing to show that the DA Form 2627-2 dated 24 January 2013 is a correction of the same form dated 1 day earlier.  Therefore, the DA Form 2627-2 dated 23 January 2013 should be removed from the applicant's OMPF.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing from his OMPF all copies of the DA Form 2627-2 dated 
23 January 2013; and

	b.  transferring the DA Form 2627 dated 1 March 2012, DA Form 2627-2 dated 24 January 2013, and all associated documents to the restricted folder of his OMPF.



      ____________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)                                         AR20140016387





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ABCMR Record of Proceedings (cont)                                         AR20140016387



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