IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140020343 


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 the nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) that he received on 21 September 2009 be removed from his Official Military Personnel File (OMPF).

2.  The applicant states in the 5 years since his Article 15 he has demonstrated through personal actions, work ethic, dedication to duty, and exemplary performance, that he is a productive member of the U.S. Army.  His primary goals are to set an example for subordinates and peers, provide exemplary support to superiors and those appointed over him, accomplish assigned missions, and to be a credit to the Noncommissioned Officer (NCO) Corps and the U.S. Army.  He listed a synopsis of his actions and accomplishments both in duty performance and continuing civilian education undertaken to improve himself as a person, NCO, and member of the U.S. Army.

3.  The applicant provides five personal references. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a staff sergeant (SSG)/pay grade E-6 serving on active duty.

2.  On 21 January 2000, he enlisted in the Regular Army.  On 1 March 2005, he was promoted to sergeant (SGT)/pay grade E-5.

3.  On 21 September 2009, he accepted NJP for:

* violating a lawful general regulation at or near Kandahar, Afghanistan between 8 July and 20 August 2009 by wrongfully engaging in a relationship with Specialist (SPC) CA that compromised, or appeared to compromise, the integrity of the chain of command and supervisory authority
* making an official statement, with intent to deceive, at or near Kandahar Airfield, Afghanistan on or about 20 August 2009 by stating "I, [applicant], have not fraternized with SPC A" or words to that effect, which statement was totally false and was then known by him to be false

4.  The punishment imposed consisted of reduction to SPC and extra duty for 
45 days.

5.  The applicant's commander directed the original DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be filed in the performance folder of the applicant's OMPF.  The applicant did not appeal his punishment.

6.  On 24 May 2011, he was promoted to SGT.

7.  On 18 January 2012, he was awarded the Army Good Conduct Medal (4th Award) for the period of service from 30 January 2009 to 29 January 2012.

8.  He received an NCO Evaluation Report (NCOER) for the period 1 June 2011 through 31 May 2012.  His rater indicated he was "Among the Best" in Part Va (Overall potential for promotion and/or service in positions of greater responsibility).  His senior rater indicated he was "Successful (1)" in Part Vc (Overall Performance) and "Superior (1)" in Part Vd (Overall potential for promotion and/or service in positions of greater responsibility).

9.  On 1 May 2012, he was promoted to SSG.  

10.  He has received two NCOERs for the periods 1 June 2012 - 17 January 2013 and 14 December 2013 - 5 January 2015.  On both NCOERs his rater indicated he was "Among the Best" in Part Va and his senior rated indicated he was "Successful (1)" in Part Vc and "Superior (1)" in Part Vd.

11.  On 2 March 2014, he was awarded the Army Achievement Medal (6th Award) for exceptional meritorious achievement from 10 February  to 7 March 2014.

12.  On 3 December 2014, he was awarded the Army Commendation Medal (4th Award) for exceptionally meritorious service from 20 January 2014 to 6 January 2015.

13.  He provided a statement, dated 13 March 2014, from Captain (CPT) SSVD.  CPT SSVD recommended the applicant's performance folder be cleared of any previous transgressions and that he be promoted ahead of his peers to sergeant first class (SFC) at the earliest opportunity.  CPT SSVD stated:

* during their time served together, the applicant showed a level of               leadership above his peers
* he led and mentored three Soldiers that were recruited to serve at the       White House Communications Agency
* four Soldiers were promoted to SPC with waivers
* the battalion S6 office achieved a 100 percent pass rate on the Army         physical fitness test
* all of the above was accomplished while maintaining a 3.8 grade point       average through an on-line college program

14.  He provided a statement, dated 14 March 2014, from CPT MJG.  CPT MJG recommended the applicant's file be cleared of any derogatory events.  CPT MJG stated:

* he worked as the applicant's battery commander for 6 months
* he proved to be the most competent and professional NCO he had ever    met
* he was the subject matter expert for all communications issues 
* he took a personal interest in the unit's supply program pertaining to all of  the communications equipment
* he showed himself as a proven leader time and again
* the Army and those he serves with would benefit from his promotion to SFC as soon as possible

15.  He provided a statement, dated 8 May 2014, from Colonel (COL) WWB, the officer who imposed the NJP on 21 September 2009.  COL WWB recommended the NJP be removed from the applicant's OMPF.  COL WWB stated:

* the applicant has exemplified what is sought in Soldiers, leaders, and        NCOs
* he has overcome adversity, continued to serve, succeeded, led, and          improved himself
* he can and has used his own example to teach younger Soldiers to be a   leader, learn from mistakes, and continue the mission

16.  He provided a statement, dated 10 August 2014, from Major (MAJ) GSH, his battalion commander.  MAJ GSH strongly endorsed the applicant's NJP be moved to the restricted portion of his OMPF.  MAJ GSH stated:
 
* he did not know the applicant at the time of his indiscipline, but can attest  to his current discipline and work ethic
* he is one of the most hardworking and trustworthy NCOs he has worked   with
* he is currently serving in an SFC billet and his performance is top-notch
* he is also filling a CPT billet due to a gap in personnel
* he has the intelligence professional drive and commitment to excel as a    senior NCO in the U.S. Army

17.  He provided a statement, dated 14 October 2014, from Lieutenant Colonel (LTC) HJC.  LTC HJC strongly recommended the NJP be removed from the applicant's OMPF.  LTC HJC stated:

* despite personnel shortages and the complexities of managing and           synchronizing the battalion's communication requirements throughout the  Korean peninsula he accomplished all of his duties in a super manner       and made it look easy
* he found the applicant to be a trustworthy, loyal, and dedicated NCO who  serves as an excellent role model for junior Solders, NCOs, and officers    alike
* he has worked very hard to overcome his temporary lapse in judgment      and this is the only black mark on his record
* his potential for future contributions to the organization and the nation are  unlimited
* his punishment has been served and he accepted it with humility and        remorse
* the trust and confidence he has in the applicant are unequivocal
* the applicant displays absolutely unlimited potential

18.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.

	a.  A commander will personally exercise discretion in the NJP process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated,

		(2)  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

		(3)  determining the amount and nature of any punishment if punishment is appropriate.

	b.  When NJP is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action, would be recorded on a DA Form 2627.  The decision to file the original DA Form 2627 in the performance section or the restricted section of the OMPF will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by any superior authority.  However, the superior authority cannot direct filing an Article 15 in the performance section when the imposing commander directed filing it in the restricted section.

	c.  The decision to file the original DA Form 2627 in the performance or restricted portions of the OMPF will be made by the imposing commander at the time punishment is imposed.

	d.  An enlisted Soldier (SGT and above) may request the transfer of a record of NJP from the performance section of their OMPF to the restricted section.  This request must be supported by substantive evidence that the intended purpose of Article 15 has been served and that transfer of the record is in the best interest of the Army.

	e.  Application for removal of a DA Form 2627 from a Soldier's OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  There must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

19.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) states that once placed in the OMPF, a document becomes a permanent part of that file.  The restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  Documents in this file include those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods.
DISCUSSION AND CONCLUSIONS:

1.  The offenses he was charged were serious in nature.  The fact that he made an official statement he knew to be false concerning his relationship with SPC A increased the seriousness of his actions.

2.  It is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process based on the applicant's offenses and considered any mitigating factors and factors raised to cast doubt on the applicant's guilt.  The record establishes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.  

3.  In promoting the applicant to SGT on 1 March 2005, the Army reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence. By violating the UCMJ he clearly violated this special trust and confidence.  As a leader who is supposed to provide a good example for his subordinates, his conduct was clearly prejudicial to good order and discipline.

4.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded that the Article 15 was appropriately issued and filed in the performance section of his OMPF.  There is no evidence of an error or injustice.  There is insufficient clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from his OMPF.

5.  Since his NJP, the applicant has been assigned duties wherein he is responsible for the training, health, welfare, morale, and deployment of those personnel assigned to him.  This in and of itself attests to the confidence of the applicant's commander in his leadership potential and willingness to get the job done.  

6.  The references he provided were reviewed.  COL WWB and LTC HJC recommended removal of the NJP from his OMPF.  CPT SSVD, CPT MJG, and MAJ GSH recommended his NJP be moved from his performance folder to the restricted folder of his OMPF.

7.  He has since been promoted to SGT and to SSG, a position of even greater authority and responsibility, which attests to his commander's special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  

8.  His promotions, NCOERs, and awards since his NJP clearly show the applicant has corrected his deficiency and has continued with his career.
9.  Therefore, in view of the above, there is substantive clear and convincing evidence to prove the intent of the NJP has been served.  It would be in the best interest of the applicant and the Army to move the DA Form 2627, dated 
21 September 2009, to the restricted folder of the his OMPF.

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 moving the applicant’s DA Form 2627, dated 21 September 2009, from the performance folder to the restricted folder 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 removal of the DA Form 2627, dated 21 September 2009.  



      _______ _   _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)                                         AR20140020343



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ABCMR Record of Proceedings (cont)                                         AR20140020343



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