IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140017724 


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, removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from her Official Military Personnel File (OMPF).

2.  The applicant states, in effect:

* on 5 January 2011, she received a field-grade Article 15/nonjudicial punishment (NJP)
* she was accused of wrongful distribution/possession of a controlled substance, making a false statement, fraud, and larceny
* in March 2011, the NJP was set aside by the commander who initially imposed the punishment
* a recent background check that was conducted as part of the nursing license application process revealed the NJP was still in her record despite the fact that it was set aside
* she believes it should have been removed because it was set aside; it is unjust that it still remains a part of her record

3.  The applicant provides:

* DA Form 2627
* Article 15 Punishment Worksheet 2008
* DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ)
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* two sworn statements
* two DA Forms 4856 (Developmental Counseling Form ), dated 24 January 2011 and 3 February 2011, respectively

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.  The applicant enlisted in the Regular Army on 13 September 2005.  After completing initial training, she was awarded military occupational specialty 68W (Health Care Specialist).  The highest rank/grade she held was sergeant/E-5.

3.  On 24 January 2011, the applicant was counseled by her first sergeant (1SG) using a DA Form 4856.  The applicant agreed with the counseling and offered no comments.  The counseling essentially stated:

* on 18 January 2011, the applicant was interviewed by an investigator with the U.S. Army Criminal Investigation Division (CID); this was a follow-up to an interview conducted on 5 January 2011
* in the 18 January 2011 interview the applicant admitted she was not truthful when she stated her former officer in charge (OIC), Major (MAJ) Bxxxxxx, had not asked her for any prescription medication
* she admitted MAJ Bxxxxxx had asked her to pick up a prescription for Ambien, a controlled medication he had prescribed for the applicant, and give it to him
* the applicant did as he asked
* by doing this, the applicant violated the UCMJ
* the 1SG stated he would recommend the applicant for UCMJ action

4.  On 2 February 2011, the applicant was given a field-grade level NJP and the punishment included a suspended reduction to the rank/grade of specialist/E-4, a forfeiture, and extra duty.  The applicant elected not to file an appeal.  The imposing commander directed the NJP be placed in the applicant's restricted file within her OMPF.  She was charged with the following specifications:

* on 1 January 2010, she wrongfully distributed 30 tablets of Zolpidem Tartrate (Ambien)
* on 5 January 2011, with the intent to deceive, she made false official statements by stating she was never asked by MAJ Bxxxxxx to provide him prescription medication and she never gave MAJ Bxxxxxx her prescription
* it was directed that the DA Form 2627 be filed on the restricted fiche of the OMPF
* the applicant did not appeal the NJP

5.  A DA Form 2627-2, dated 21 March 2011, item 4 (Setting Aside) refers to a continuation sheet wherein the same commander that imposed the NJP provided the basis for his action.  This continuation sheet, however, was not available for review.

6.  On 7 August 2014, the applicant was honorably discharged.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 8 years, 10 months, and 25 days of net active creditable service.  The narrative reason for separation is shown as parenthood.  

7.  A review of the applicant's OMPF shows both the NJP and the action to set aside the NJP are in her restricted file.

8.  Army Regulation 27-10 (Military Justice) provides the applicable policies for the administration of NJP.  The regulation states NJP may be imposed to correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s 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 Soldier’s 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.

	c.  Paragraph 3-28 describes the setting side of punishment and restoration or rights, privileges, or property.  This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored.  If all findings are set aside, the the UCMJ, Article 15 itself is set aside and removed from the Soldier's records. (emphasis added)

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of an NJP she received in 2011 on the basis that the same commander who initially imposed the NJP set it aside.

2.  Army Regulation 27-10 states, when all findings are set aside, the NJP itself is set aside and is to be removed from the Soldier's records.  The applicant's restricted fiche in her OMPF contains both the NJP (with associated documents) and the action directed by the imposing commander to set aside that NJP.  The NJP was set aside; therefore, it should be removed from her OMPF.

3.  Based upon the foregoing, there is sufficient evidence to grant the requested relief.

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 
removing the DA Form 2627, dated 2 February 2011 (with associated documents) and the DA Form 2627-2, dated 21 March 2011, from the applicant's 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)                                         AR20140017724



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ABCMR Record of Proceedings (cont)                                         AR20140017724



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