IN THE CASE OF:
BOARD DATE: 22 January 2015
DOCKET NUMBER: AR20140019269
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 of a DA Form 2627 (Record of Punishment Under Article 15, Uniform Code of Military Justice (UCMJ)) from his Interactive Personnel Electronic Records Management System (iPERMS) records.
2. The applicant states the imposing officer set aside the nonjudicial punishment (NJP) under Article 15, UCMJ with no intention of imposing the Article 15. The DA Form 2627 showed up on his record in 2010.
3. The applicant provides copies of:
* a 20 February 2014 memorandum from the imposing officer
* an email chain between the applicant and U.S. Army Human Resources Command
CONSIDERATION OF EVIDENCE:
1. The applicant, a Regular Army captain, was commissioned on 10 July 2008.
2. The DA Form 2627 shows that on 12 September 2007, the applicant, then a sergeant first class with approximately 8 and one-half years of active duty service, accepted NJP under the provisions of Article 15, UCMJ for absence from his place of duty (the End of Day Formation at the Motor Pool), disrespect toward a superior ranking noncommissioned officer (First Sergeant S----- T-----), and willful disobedience of the same first sergeant. The group commander, a colonel, imposed punishment in the form of a locally-filed written reprimand and directed that the DA Form 2627 be filed in the restricted portion of the applicant's Official Military Personnel File (OMPF). Approximately 27 pages of counseling statements and sworn statements are attached to the DA Form 2627.
3. Item 11 (Allied Documents and/or Comments) of the DA Form 2627 lists several documents that are not attached to the 2627 as it is filed in the applicant's restricted file. These include:
a. DA Form 1574 (Report of an Investigating Officer or Board)
b. Findings and Recommendations
c. Appointment Orders
d. "MFR, BDE CDR, withholding UCMJ"
4. The documents submitted by the applicant in support of his request show:
a. The officer who is shown to have imposed the NJP, now a retired brigadier general, wrote in a 20 February 2014 memorandum that the Article 15 punishment "was initiated but never executed. I did not elect to file this Article 15 in the Soldier's OMPF. The action was set aside and a Brigade letter of reprimand was issued and filed locally at which time I considered the matter closed...The filed Article 15 is also missing documents that are pertinent to the case
I request removal of this erroneously executed and filed document from (the applicant's) OMPF..."
b. The email chain that the applicant submitted to support his request shows the U.S. Army Human Resources Command informed him that the DA Form 2627 was moved to the restricted portion of his iPERMS and that, "The document is where it is supposed to be. It was always supposed to be on the record
The legal team caught their mistake in 2010 and added the document to your record."
5. Army Regulation 27-10 (Military Justice), paragraph 3-37c(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing. The decision to file the original DA Form 2627 in the performance section or restricted section will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority.
DISCUSSION AND CONCLUSIONS:
1. The ABCMR does not normally reexamine the imposition of NJP. If the DA Form 2627 and the associated documents were properly filed in the applicant's restricted record before he was commissioned then, by regulation, they should have been moved to the restricted portion of his officer record.
2. However, that is not the question at issue here. Given the serious nature of the alleged offense of willful disobedience (almost nothing else is so inimical to military discipline) it seems improbable that a senior officer could have imposed any punishment for this offense NJP without also ensuring that the applicant was removed from consideration for a commissioning program.
3. Therefore, considering the imposing officer has indicated that the Article 15 was initiated but never executed and she did not elect to file the Article 15 in the applicants records, it would be appropriate to remove this Article 15 from his records.
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 2676 and any and all related document from his iPERMS records and not filing this Record of Proceedings in his records.
__________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) AR20140019269
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ABCMR Record of Proceedings (cont) AR20140019269
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