IN THE CASE OF:	  

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20150009022 


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 the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 21 June 2011, from the restricted folder of his official military personnel file (OMPF).

2.  The applicant states:

	a.  He received the Article 15 in 2011 due to a divorce and he was forced to accept the Article 15 in order for the unit to extend his orders.  He was in the U.S. Army Reserve (USAR) and was serving on active duty.  He out-processed a few months later and received a DD Form 214 (Certificate of Release or Discharge from Active Duty) with an honorable discharge.  A month later, he received new 365-day orders to support the same unit.  He served honorably and received an Army Commendation Medal at the end of 2012 from the same unit.  He then got out of the USAR and received another DD Form 214 with an honorable discharge in November 2012. 

	b.  In April 2013, he enlisted in the Regular Army (RA) for a period of 3 years. Since then, he has been serving with excellent performance and deployed to Iraq in support of Operation Inherent Resolve.  He was attached to the Marines Task Force, Alasad, Iraq; was chosen as the best interpreter; and was assigned to the camp commander as his interpreter.  While serving in Iraq, he earned the Combat Action Badge. 

	c.  He believes the Article 15 should be removed from his record for his outstanding performance and because it is causing a promotion barrier and an unjust bar to reenlistment.  He loves the Army and he apologizes for the Article 15.  He has since become a better person, a better Soldier, and has learned from his mistakes.  He would like to excel in the Army and be beneficial to both the Army and his country.  All of his noncommissioned officer evaluation reports (NCOERs) are excellent and he did not receive any negative bullets.  His enlistment in the RA should be a new page and he asks the Board to consider removing the Article 15 so he can progress and excel.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving on active duty as a member of the USAR Active Guard Reserve.  He was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 393rd Infantry Regiment, Fort Hood, TX.  On 14 August 2010, he was promoted to the rank/grade of staff sergeant (SSG)/E-6. 

2.  On 20 May 2011, a DD Form 2873 (Military Protective Order) was issued at Fort Hood, TX, against the applicant.  He was prohibited from initiating any contact or communication with Ms. NM, and ordered to remain at least 500 feet away from her.  The order stated the applicant and Ms. NM had verbal and physical altercations in the past and it was to remain in effect until 31 December 2011, unless rescinded, modified, or extended. 

3.  In a DA Form 2823 (Sworn Statement), dated 20 May 2011, the applicant stated, in part, that he filed assault charges against Ms. NM and she had to go to court on 26 May 2011.  She approached him and asked him to drop the charges or not show up in court so the charges would be dismissed.  Because he refused, she threatened to get him in trouble with his unit and cause problems.  She was very jealous because he cancelled the divorce proceedings with his wife.  The Killeen Police Department had been called over seven times and every time she called she fabricated stories.  He followed the police advice to not live with her anymore and stay away from her, but she didn't stop calling him and asking for favors.  He further stated they had been living together for 7 or 8 months when she started threatening him, he was separated from his wife at that time, and he did have sex with her.

4.  On 20 May 2011, he was counseled by his sergeant major (SGM) for wrongful cohabitation.  The SGM stated it had been brought to the command's attention that he had wrongfully cohabitated with a civilian female while separated from his current wife.  He was being counseled that if this conduct continued separation action could be initiated against him under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  If he was involuntarily separated, he may receive an honorable discharge, a general discharge, or a discharge under other than honorable conditions.  The applicant stated he was being falsely accused, was not living with that person, not doing anything illegal, and she was the one making false accusations.

5.  On 21 June 2011, the applicant was notified by his commander that he was considering nonjudicial punishment (NJP) against him under the provisions of Article 15, UCMJ, for misconduct, in that he, a married man, did, from on or about 1 March through 31 October 2010, on divers occasions, wrongfully have sexual intercourse with Ms. NM, a woman not his wife.

6.  On 30 June 2011, the applicant indicated he had been afforded the opportunity to consult with counsel and understood his rights.  He elected not to demand trial by court-martial and requested a closed hearing.  He further stated that he did not want a person to speak on his behalf and he would present matters in defense, extenuation, and mitigation.

7.  On 6 July 2011, he was found guilty of the specification.  The punishment imposed was reduction to sergeant (SGT), forfeiture of pay per month for 2 months, extra duty and restriction for 45 days, and an oral reprimand.  All of the imposed punishment, except the oral reprimand, was suspended, to be automatically remitted if not vacated before 6 January 2012.  The imposing commander directed filing the DA Form 2627 in the restricted folder of his OMPF.  He was advised of his right to appeal to the next higher authority within 5 days.

8.  On 6 July 2011, the applicant indicated he would not appeal the Article 15.  The DA Form 2627 is currently filed in the restricted folder of his OMPF.

9.  He was subsequently honorably discharged from the USAR in the rank of SSG.  On 24 April 2013, he enlisted in the RA in the rank of SSG and is currently serving on active duty. 

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive 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 non-punitive 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.  It further states:

	a.  A commander's decision whether to file a record of NJP in the performance folder 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 carefully weigh 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 folder.  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 folder.

	b.  For Soldiers above the rank of sergeant, the original copy of the Article 15 will be sent to the appropriate custodian for filing in the OMPF.  The decision to file this form in the performance or restricted folder of the OMPF will be made by the imposing commander at the time NJP is imposed.

	c.  Applications for the transfer or removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Corrections of Military Records (ABCMR).  There must be clear and compelling evidence to support removal of a properly-completed, facially-valid Article 15 from a Soldier's record by the ABCMR.

11.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF.

	a.  It provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Table B-1 (Authorized Documents) shows the DA Form 2627 will be filed in either the performance or the restricted folder of the OMPF as directed by the imposing commander.

	b.  It provides that the restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent.  This regulation also provides that documents in the restricted folder of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, an SSG, accepted NJP in lieu of trial by court-martial for having sex with a woman who was not his wife on numerous occasions.  The imposing commander directed filing the Article 15 in the restricted folder of his OMPF.  The applicant chose not to appeal the NJP.

2.  His contention that he has always served honorably is noted; however, it appears the commander imposing the NJP took this into consideration when all the punishment imposed, except the oral reprimand, was suspended and he directed filing the Article 15 in the restricted folder and not the performance folder of the applicant's OMPF

3.  His NJP proceedings were conducted in accordance with law and regulation and the Article 15 is properly filed in the restricted folder of his OMPF as directed. In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  The evidence of record does not show and the applicant has not provided any evidence that shows the Article 15 is untrue or unjust.

4.  The Army has an interest in maintaining the integrity of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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 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)                                         AR20150009022





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ABCMR Record of Proceedings (cont)                                         AR20150009022



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