BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20150000469 


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, dated 15 August 2002, from the restricted folder of his official military personnel file (OMPF).

2.  The applicant states:

   a.  This is the only Article 15 he has ever received.  It was received when he was 24 years of age and working part-time at Taco Bell on post in Baumholder, Germany.  If a customer did not want to receive a stamp on their value cards for buying a value meal, he would stamp the card of the next person in line who wanted it.  He was not aware that this was against the Army and Air Force Exchange Service's policy.  The economic loss was deemed to be less than $20.00.  It is unjust that this alone could prevent him from progressing in his Army career.  He has more to offer the Army and would like a chance to do so.

   b.  He has been overlooked for promotion to sergeant first class (SFC) four times.  He has done his best to prepare his records each year.  During a professional counseling session with a command sergeant major in April or May 2012, he learned that the restricted folder of his OMPF could be viewed by the promotion board.  Before that date, he had no idea that the 2002 Article 15 could be keeping him from getting promoted.

3.  The applicant provides copies of the following:

* Enlisted Record Brief (ERB)

* five Army Good Conduct Medal orders
* four Army Achievement Medal certificates
* five Army Commendation Medal certificates
* fifteen DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Reports (NCOERs))
* four DA Forms 1059 (Service School Academic Evaluation Report)
* twelve training completion certificates
* Certificate of Appreciation
* four Certificates of Achievement
* unit award memoranda and orders
* two Department of Defense (DOD) Sexual Assault Advocate Certification Program (D-SAACP) letters
* Associates in Science diploma
* ten character letters

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, in pay grade E-1, on 6 August 1997.  He was awarded military occupational specialty 91B (medical specialist).  He served in Kuwait from 1 August 2000 through 1 December 2000.

2.  He was promoted to sergeant/E-5, on 1 December 2001.  He served in Germany from 11 April 2001 through 10 April 2004.

3.  His records located on the Interactive Personnel Electronic Records Management System (iPERMS), restricted folder, contain a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which shows on 15 August 2004 he accepted nonjudicial punishment (NJP) under Article 15 for, with intent to defraud, he falsely pretended to stamp an unknown amount of free Taco Bell meal cards, then knowingly by means thereof did wrongfully obtain from Taco Bell services, of a value of about $20.00. 

4.  The DA Form 2627 shows he elected a closed hearing and did not request to be represented by counsel and he did not present matters in his defense.  His punishment included a forfeiture of $200.00 pay and 14 days of extra duty.  He did not appeal.  On the same day, the imposing authority directed the Article 15 be field in the restricted folder of his OMPF.

5.  His records contain and he provided copies of the following:

   a.  Five orders, dated between January 2001 and May 2013, awarding him the Army Good Conduct Medal (5th Award).

   b.  Four Army Achievement Medal certificates, dated between January 1999 and March 2007, issued for his exceptional meritorious service as a combat medic, outstanding performance of duty during deployment, and meritorious service while serving as an emergency medical NCO.

   c.  Five Army Commendation Medal certificates, dated between May 2004 and September 2013, issued for his meritorious service in support of Operations Iraqi (OIF) Freedom and Enduring Freedom (OEF) and as a Clinical NCO in Charge at the U.S. Army Health Clinic in Baumholder.

   d.  Four Certificates of Achievement issued for his reenlistment, outstanding achievement in support of OIF, meritorious achievement during rotation, and being NCO of the month (January 2004).

   e.  Four DA Forms 1059, dated between March 2002 and November 2012, which show he completed the Professional Development Leadership, Basic NCO Course, Army Medical Department (AMEDD) Advanced Leader, and AMEDD Senior Leader courses.  He provided copies of the resulting certificates.

   f.  Fifteen NCOERs, dated between December 2001 and September 2014, which show he received ratings of "Successful," "Fully Capable," "Among the Best," and "Excellence."  The NCOER's contain senior rater bullet (SR) comments of "promote to SFC with peers;" "promote to SFC now;" and "promote to SFC ahead of peers; "promote to SFC immediately, continues to demonstrate potential beyond his current rank;" and "promote to SFC immediately, groom and mentor to become future first sergeant."

6.  His ERB shows he served in Iraq from 16 March 2003 through 16 July 2004.

7.  He reenlisted in the RA, in pay grade E-5, on 7 February 2007, for 3 years.

8.  He again served in Iraq from 20 September 2007 through 25 November 2008. He was promoted to staff sergeant, pay grade E-6, on 1 August 2008.  He served in Afghanistan from 2 May 2010 through 29 April 2011.

9.  His records also contain and he also provided copies of the following:

   a.  A Certificate of Appreciation issued for exceptional meritorious service during OEF.

   b.  Several unit award memoranda and orders for his service during OIF and OEF.

   c.  A D-SAACP letter, dated 20 March 2013, wherein he was advised of his certification as a nationally-recognized professional working on behalf of victims of sexual assault.

10.  He further provided copies of the following:

   a.  An Associates in Science diploma, dated 17 January 2014.

   b.  Ten character letters, dated between 27 May and 27 December 2014, wherein the individuals, to include the Profession of Military Science and his previous and current chain of command, attested that:

		(1)  The applicant was an asset to the Army and it was acknowledged that the applicant was subject to proceedings under Article 15 of the UCMJ in 2002 that should in no way reflect on his performance of duty since then.  The intended purpose of the Article 15 had been served and it would serve the best interests of the Army to remove the document from his file.

		(2)  Further, the best interest of the Army would be served by promoting the applicant to a position of increased responsibility and that could not be accomplished without removal of that document.  The Article 15 was for a relatively minor infraction involving petty theft from the company that employed him after hours.  It was felt the applicant had earned the opportunity to have that negative mark removed from his record.

		(3)  The applicant worked as one of trusted medical NCOs in garrison and combat.  He was entrusted with the mentoring of junior medics and the medical care of a company of infantry Soldiers in an isolated combat outpost.  With little or no guidance or oversight the applicant took excellent medical care of his Soldiers and numerous local nationals.  He made a mistake, a mistake that he paid the price for and learned a valuable life lesson from.

11.  He is currently serving in an active status.  His record contains no evidence of any other derogatory information during his period of service from 2002 through now.

12.  Army Regulation 600-37 (Unfavorable Information), in effect at the time, set forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.

13.  Army Regulation 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice.  The regulation stated in:
   a.  Paragraph 3-1 - NJP 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 UMCJ, could be set aside or removed upon determination that, under all the circumstances of the case, a clear injustice had resulted.

   b.  Paragraph 3-6 - Generally, the term “minor” included misconduct not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial (SCM).  It did not include misconduct of a type that, if tried by General court-martial, could be punished by dishonorable discharge or confinement for more than 1 year.  Violations of, or failures to obey, general orders or regulations could be minor offenses if the prohibited conduct itself was of a minor nature even though also prohibited by a general order or regulation. 

   c.  Paragraph 3-37(1)(1) – the decision to file the original DA Form 2627 on the performance or restricted sections in the OMPF would be made by the imposing commander at the time punishment is imposed.

   d.  Paragraph 3-43 – contained guidance on the transfer or removal of DA Forms 2627 from the OMPF.  Applications for removal of a DA Form 2627 from a Soldier’s OMPF based on error or injustice would be made to the ABCMR.  There must compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

   e.  Paragraph 7-2a – once an official document has been properly filed in the OMPF, it was presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

   f.  Paragraph 7-2b(1) – unfavorable documents could be appealed on the basis of proof that their intended purpose had been served and that their transfer/removal would be in the best interest of the Army.  The burden of proof rests with the appellant to provide substantial evidence that these conditions had been met.

14.  Army Regulation 600-8-104 (Army Human Resource Records Management) prescribes the policies governing the OMPF and its composition.  The regulation states once a document is placed in the OMPF it 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 NJP under Article 15 on 15 August 2002 for wrongfully obtaining Taco Bell services of about $20.00.  He did not appeal the punishment.  The imposing authority directed the Article 15 be filed in the restricted folder portion of his OMPF.

2.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through proper channels.  He elected not to appeal his Article 15 to the next higher commander.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the restricted folder of his OMPF as directed by the imposing commander.  There is no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.

4.  The applicant's continued service to our nation, his awards and decorations, and his combat tours are noted.  However, the fact remains that he violated the UCMJ and he was punished for it.  His dissatisfaction with the outcome of this NJP does not invalidate the contested Article 15 and any impact on his career is a natural consequence of his own actions.  In the absence of an error or an injustice, there is no reason to remove the Article 15 from his records.

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)                                         AR20150000469





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ABCMR Record of Proceedings (cont)                                         AR20150000469



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