IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20150002956 


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 transfer of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) and a Disqualification for the Army Good Conduct Medal (AGCM) memorandum from the performance (P) portion to the restricted (R) portion of his Army Military Human Resource Record (AMHRR).

2.  The applicant states that he believes the Article 15 and memorandum of disqualification for award of the Army Good Conduct Medal have served their intended purpose.  He has been disqualified from several high profile/special duty assignments over the past 5 years due to the negative documents placed in his performance records.  He has worked tremendously hard to show the Amy the image he has created is that of a model Soldier.  Five years have passed since he received the Article 15.  He did not request to have the documents transferred sooner because he wanted to allow himself enough time to display to the Board members what a stellar Soldier he truly is, and present enough evidence for the Board to make a well-informed decision.

3.  The applicant provides:

* a self-authored memorandum
* a DA Form 2627
* a memorandum of disqualification for award of the AGCM
* a memorandum of support
* an Enlisted Record Brief
* 7 DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* a DA Form 638 (Recommendation for Award) showing the applicant was awarded the Meritorious Service Medal and corresponding certificate
* a U.S. Army Special Operations Command Certificate of Achievement
* a recommendation for membership in the Honorable Order of Saint Martin and corresponding certificate of membership
* a certificate showing conferment of an Associate of Science degree in General Studies from Colorado Technical University

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.  Having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 25 April 2003.  He was promoted to the rank/pay grade of staff sergeant (SSG)/E-6 on 1 May 2007.

3.  On 30 July 2009, while in the rank/pay grade of SSG/E-6, field grade nonjudicial punishment (NJP) was imposed against him for the below listed offenses in violation of Article 92 of the UCMJ.  

   a.  One specification of violating a lawful general regulation between 15 May and 15 June 2009 by wrongfully making and receiving cell phone calls to and from two female junior enlisted Soldiers who were attending Advanced Individual Training (AIT) at the time.
   
   b.  Two specifications of violating a lawful general regulation on or about 15 June 2009 by wrongfully entering a junior enlisted female AIT student's barracks room unescorted for matters unrelated to work.
   
   c.  One specification of violating a lawful general regulation by wrongfully threatening a junior enlisted AIT Soldier that she would become a "holdover" if she became a witness in the ongoing investigation.

4.  Item 3 (Having been afforded the opportunity to consult with counsel, my decisions are as follows) of the Article 15 shows the applicant initialed "I do not demand trial by court-martial", "A person to speak in my behalf is requested" and "Matters in defense, mitigation and/or extenuation will be presented in person."  The punishment imposed included:

* reduction to the rank/pay grade of sergeant (SGT)/E-5
* forfeiture of $1,335.00 per month for 2 months
* extra duty for 45 days
* written reprimand
* filing of the DA Form 2627 in the performance portion of the applicant's AMHRR

5.  On 3 August 2009, the applicant's brigade commander issued him a Memorandum of Reprimand (MOR) for violating lawful general regulations by engaging in prohibited conduct with trainees and creating an offensive, unprofessional training environment, in violation of Article 92, UCMJ.  The brigade commander advised the applicant that this reprimand was imposed as punishment as a result of the brigade level Field Grade Article 15 that he received on 30 July 2009.  He also informed the applicant that the reprimand would be filed in the performance portion of his Official Military Personnel File (OMPF, which includes the AMHRR) as an attachment to the Article 15.

6.  On 4 August 2009, the applicant submitted a written appeal of the Article 15, wherein he disputed each of the specifications for which he was charged.  After considering the applicant's appeal, The Commanding General, Quartermaster Center and Schools, Fort Lee, VA, denied the applicant's appeal.  As a result, the DA Form 2627 and related documents were filed in the performance section of the applicant's AMHRR.

7.  In a memorandum, dated 10 August 2009, the applicant's company commander disqualified the applicant for award of the AGCM for the period 18 August 2006 through 17 August 2009.

8.  He was promoted to SSG/E-6 on 1 May 2010.

9.  Permanent Order 229-06, dated 16 August 2012, awarded him the AGCM (3rd Award) for the period 18 August 2009 through 17 August 2012.

10.  A review of his records located on the integrated Personnel Electronic Records Management System (iPERMS) showed the Article 15 and memorandum of disqualification for award of the AGCM are filed in the performance portion of his AMHRR.  

11.  The applicant provides a self-authored memorandum, dated 20 December 2014, wherein he states:

The intention of the Article 15 was to provide a punishment for a negative action that I committed, and to serve as a corrective measure to help me avoid making such a mistake again.  The desired effects of the corrective and punitive measures have been fulfilled.  This is evident by the fact that I have not engaged in such behavior in over five years.  Since the Article 15 occurred, I have learned from both my mistakes and the corrective measures taken.  I have worked aggressively hard to create an impeccable record of performance and demonstrated potential, as reflected in the past five years of my NCOERs, and a complete lack of any additional negative marks on my record.

After I received the Article 15 in July 2009, I endeavored to learn from my past mistakes and become a better person and Soldier.  In only 10 months I earned a promotion back to Staff Sergeant in May 2010.  I was promoted under the same command team that imposed judicial punishment upon me 10 months earlier.  The command team recognized my resilient attitude and my drive to show that the actions that I had in the past would never be committed again.  I was given the opportunity to continue to train Advanced Individual Training Soldiers, Non-Commissioned Officer Academy NCOs, and Basic Officer Leadership Course Lieutenants on Convoy Live Fire operations during field training exercises.  I was rated as 'Among the best" performing the duty as the Observer and Controller during my rating period.

Since 2010 all of my NCOERs have documented an exceptional high quality of my character, values, and determination to improve myself as a Soldier.  On every NCOER, I have been senior rated as a "1/1" for my performance and potential.  In 2010, I was selected over two Sergeants First Class to become the NCOIC [NCO in charge] of a Supply Support Activity within the United States Army Special Forces Command (USASFC).  While serving in the position of NCOIC I was faced with many adversities and challenges within the special operations command.  Facing budget cuts and shortage of qualified personnel, I was still able coach, teach, and mentor Soldiers, NCOs, and civilian[s] to run a successful and fully functional warehouse.  Within 24 months of my time as the NCOIC I was directly responsible for three NCOs being promoted to the rank of Staff Sergeant, one Soldier being selected for Officer Candidate School, and executing many duties such as Master Driver, Equal Opportunity Leader, Static Line Jumpmaster, and Instructor for Static Line Jumpmaster Course.  While continuing to supporting the command and successfully accomplishing every mission beyond reproach, as the NCOIC,  the Soldiers and I were by recognized Lieutenant General C______ T  C________ and award[ed] 1st place for the Supply Excellence Award (SEA) Level IV United States Army Special Forces Command (USASFC) FY11, and United States Special Forces Command (USASOC) FY12.  Prior to my Permanent Change of Station to my next assignment, I was awarded the Honorable Order of Saint Martin by the Brigadier General J___ E O'____ IV for my efforts and endless contributions to the Quartermaster Corp, and Meritorious Service Medal for the endless efforts contributed to the 1st Special Forces Group (Airborne).

One of the greatest challenges that I have faced in my career was teaching subordinates, peers, and junior Lieutenants how to be resilient and operate under the United States Special Operations Command.  Being able to support a mission at a moment's notice to a small team of operators in the far corners of the Pacific Asia not only presented know how of the dynamic job, but being able to understand and attain non-standard logistical methods to those teams in need of logistical support. All while still continuing to accomplish the daily mission at hand.  For the past 12 months, I have been assigned the duty of the Battalion Air Logistics NCO, and it has provided its own unique challenges that compels me to be adaptive in any environment and never take "no" for a final answer, while providing the Commander with answers and recommendations to enhance the overall readiness within the airborne community we support.  While my last two assignments have been challenging, I have been fortunate to work with fellow leaders that trust and enable me to accomplish the mission that I have been called on to execute.

While balancing a demanding professional life and taking care of my family, I have remained focused upon improving myself as an individual.  I have earned an Associate of Science in General Studies while concurrently serving on Active Duty.  I am currently pursuing classes within the joint logistics field, with the intent of using this working knowledge to better assist my Commander on as many aspects of logistical possibilities.  While expounding on my knowledge of logistics, I aspire to serve as a Master Resilience Trainer (MRT).  Many leaders tend to think "Army Strong' is about being physically fit, but it is also being mentally and emotional[ly] fit as well, and providing Soldiers on every level with the tools to overcome their certain adversity that will make our force that much stronger.  Sharing experiences help in fostering a positive work environment throughout the Army; and serving as a role model to other Soldiers so that they too, can encounter and overcome challenges throughout their personal and professional lives.  With my own personal history and experiences, I feel that I would be a prime candidate to serve the Army as a Master Resilience Trainer or in any position that would enable me to better mentor and lead Soldiers to success.  As a[n] NCO that has personally experienced both professional and personal challenges, overcame them, and continued to succeed in the Army, I believe that I have much to offer to younger
Soldiers.

Granting this request will enable me to contribute more to the Army team, by permitting me to become competitive for increased responsibility.  The potential for me to serve the Army at a higher capacity is more likely if the Article 15 is moved to my restricted File.  The Army has invested much time in crafting the NCO that I am today, and granting this request will help realize my potential to serve the Army in a greater fashion."

12.  The applicant provides a memorandum of recommendation rendered by his company commander in the rank and pay grade of captain/O-3, dated 15 January 2015, wherein the commander states:

I would like to take this opportunity to strongly recommend that [the applicant's] Article 15 be removed from his performance record to his restricted file.  [The applicant] proved over the last five years to be an excellent Noncommissioned Officer who is ready to assume the increased responsibilities and requirements of a Senior Noncommissioned Officer.  I can guarantee that he will make a positive impact in the Army and its Soldiers given the opportunity.

[The applicant] is a multifunctional Logistician that clearly possesses the knowledge, skills, and attributes the Army is looking for in today's ranks.  A highly talented Non-Commissioned Officer, he strives for excellence in all endeavors and this is evidenced by his military job performance.  [The applicant] has aggressively pursued his military education and his civilian education in an attempt to become the most skilled and highly trained Soldier he can be.

I strongly recommend [the applicant's] Article 15 be placed in his restricted file giving him a promising chance at continued service in the Army.  I am certain without any reservation that he will continue to develop into a highly effective and talented Senior leader that I will be proud to have leading my staff and other members of the team in the future.  [The applicant] possesses all the tools and talents of an outstanding leader to lead our Army in the 21st century.  We now select Soldiers based on promising experience coupled with tremendous potential in hopes that they develop aggressively while still accomplishing all assigned missions.  [The applicant] has displayed this through professionalism, moral integrity, and the courage to act on his convictions.

I firmly believe [the applicant] will fulfill these hopes and goes on to become a fully functional and effective Senior Noncommissioned Officer given the opportunity.  Furthermore, I'm am convinced that [the applicant's] full potential will not be realized until he is wearing the rank of a Senior NCO and exercising skills over a broader landscape.  Placing this Article 15 in his restricted file will give him the chance at continued service in the Army, training Soldiers, NCOs, and Officers.  He will not fail.

13.  The applicant provides numerous NCOERs, award documents, and certificates which show he has performed in an exemplary fashion since the receipt of his Article 15 and was disqualified for award of the AGCM.

14.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	a.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF 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.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

15.  Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the OMPF. Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or the interactive Personnel Electronic Records Management System.  Table B-1 states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4b or 5 of DA Form 2627.  

16.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual official personnel files.  Paragraph 7-2, further specifies that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole, or in part, thereby warranting its alteration or removal from the AMHRR.  Claims that an Article 15 is unjust will be adjudicated by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant violated the UCMJ while serving as a SSG and subsequently accepted a field grade NJP on 30 July 2009. The imposing commander directed filing the Article 15 in the performance portion of the applicant's OMPF.  The applicant's appeal of the Article 15 was denied by a general officer. 

2.  Based on the issuance of the NJP, the applicant's company commander disqualified him for award of the AGCM for the period 18 August 2006 to 17 August 2009.  

3.  His NJP proceedings were conducted in accordance with law and regulation and his DA Form 2627 and the disqualification memorandum are properly filed in the performance portion of his AMHRR as directed by the imposing commander. 

4.  Company commanders are authorized to award the AGCM to personnel under their command who meet the established criteria.  Their decision is based on their personal knowledge and the individual's records for the periods of service during the period for which the award is to be made.  A disqualification memorandum alerts Army personnel of the prohibition for the AGCM for a specified period of time.   

5.  The applicant's continued service to our nation, his NCOERs, awards and decorations are noted.  However, the fact remains that he violated the UCMJ and the trust of his senior leaders and the Soldiers, who were in a training status, entrusted to his care at the time of the imposition of the UCMJ.  Based on his actions, he was appropriately punished and the filing of the DA Form 2627 and allied documents should not be transferred to the restricted file or removed from his AMHRR at this time.  In order to remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant has not provided convincing evidence that either the DA Form 2627 or the memorandum of disqualification for award of the AGCM is untrue or unjust, in whole, or in part, to support his request.  

6.  In view of the foregoing, his request should be denied. 

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)                                         AR20150002956



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ABCMR Record of Proceedings (cont)                                         AR20150002956



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