IN THE CASE OF:  	  

		BOARD DATE:  20 August 2015	  

		DOCKET NUMBER:  AR20150011248 


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, UCMJ (Uniform Code of Military Justice)), dated 8 September 2014, and the allied documents that are filed in her Official Military Personnel File (OMPF).

2.  The applicant states that while serving as Supply Sergeant, Company A, 209th Aviation Support Battalion (ASB), Wheeler Army Airfield, Hawaii (HI), the company commander (Captain (CPT) L___ K. C____, an African-American female) discriminated against her (a Caucasian female).

   a.  She states that the findings of the investigating officer (IO) show the commander more likely than not treated her differently because of her race.  Thus, the commander violated Army Regulation (AR) 600-20 (Army Command Policy), chapter 6 (The Equal Opportunity Program in the Army) and Appendix C (Equal Opportunity/Sexual Harassment Complaint Processing System).  In addition, the commander decided the applicant's guilt before completing the second half of the nonjudicial punishment (NJP), which is in violation of AR 27-10 (Military Justice).

   b.  After imposing the NJP, the company commander then completed the senior rater portion of a DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report) with a "Thru" date of 8 September 2014.  The IO stated, "both actions more likely than not were motivated and resulted in unequal treatment because of [the applicant's] race."
   c.  She adds that the commander failed to enforce AR 600-100 (Army Leadership), paragraph 2-1(k), which directs that leaders will "treat subordinates with dignity, respect, fairness, and consistency."  In addition, she wrongfully publicly belittled, admonished, or embarrassed the executive officer and first sergeant.  She also states that the commander used written counseling or threats of written counseling in such a manner that it inappropriately restricted the first sergeant in his ability to accomplish his assigned and implied duties.

3.  In support of her request the applicant provides two memoranda and a copy of a DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 16 February 2005. Through a series of reenlistments she has continued to serve in the RA.

2.  She is currently serving on active duty in the rank of staff sergeant (SSG)/pay grade E-6 in military occupational specialty 92Y34 (Supply Sergeant).

3.  A review of the applicant's OMPF revealed a DA Form 2627, initiated on 
21 August 2014, imposed as punishment for her misconduct at Wheeler Army Airfield, HI, on 7 July 2014, for violation of the UCMJ, Article 107 (False official statements) and Article 108 (Military property of the United States – sale, loss, damage, destruction, or wrongful disposition).  The DA Form 2627 also shows:

* CPT L___ K. C____, Commander, Company A, 209th ASB, imposed the NJP
* Lieutenant Colonel (LTC) J___ R. D____, Commander, 209th ASB, denied the applicant's appeal of the NJP

4.  The DA Form 2627 is filed in the performance section of the applicant's OMPF.  The allied documents are filed in the restricted section of her OMPF.

5.  In support of her request the applicant provides the following documents.

   a.  A DA Form 2627-2 that shows on 22 April 2015, LTC J___ R. D____, Commander, 209th ASB, as the superior authority, set aside the punishment of forfeiture of $777.00 and extra duty for 14 days.  It shows in item 6 (The original DA Form 2627 was filed as follows), an "X" indicating "Performance section of the OMPF."

   b.  Headquarters, 209th ASB, 25th Combat Aviation Brigade, Wheeler Army Airfield, HI, Memorandum For Record, dated 22 April 2015, subject:  Addendum to DA Form 2627-2 to Support Wholly Setting Aside of Article 15 Punishment of SSG [Applicant], shows LTC J___ R. D____, the superior authority of the commander who imposed the NJP, directed that the DA Form 2627 be removed from the applicant's records.  He states the action to set-aside the NJP surpassed the 4-month limit due to a subsequent AR 15-6 (Procedures for IO and Boards of Officers) investigation of the imposing commander (CPT L___ K. C____, Commander, Company A, 209th ASB) that was completed on 6 February 2015.  He provides the Executive Summary of the AR 15-6 investigation that supports the complete removal of the NJP from the applicant's OMPF.

    	(1)  He states the AR 15-6 investigation recommended that the command coordinate with the appropriate agencies to determine and execute the proper method under Army regulations to remove, expunge, and invalidate the NJP and remove it from all personnel files, along with the refund of $777.00 and a method to compensate her for the 14 days of extra duty.

    	(2)  As the appointing authority for the AR 15-6 investigation, he adopted and approved portions of the investigation on 5 March 2015.  The relevant portions are:

* CPT C____ did not treat the applicant with dignity and respect
* the NJP be expunged from the applicant's local and permanent personnel files and that she be refunded the $777.00 she was assessed by the NJP
* completion of a new NCOER that reflects the applicant's actual performance to replace the current NCOER
* a method to compensate her for the 14 days of extra duty

    	(3)  He added that he did not adopt the finding that CPT C____ engaged in favoritism based upon race, but instead found that an unhealthy command climate existed in Company A, 209th ASB.

   c.  Headquarters and Headquarters Company, 2nd Battalion, 25th Regiment, 25th Combat Aviation Brigade, Wheeler Army Airfield, HI, memorandum, dated 6 February 2015, subject:  Executive Summary of AR 15-6 Investigation of CPT ____, shows CPT C___ J. S____, IO, submitted findings and recommendations to the Commander, 209th ASB, 25th Combat Aviation Brigade.  (The relevant portions are as summarized above by the Commander, 209th ASB.)

6.  Army Regulation 600-8-104 (Army Military Human Resources Records (AMHRR)) provides policies, operating tasks, and steps governing the AMHRR.  Depending on the purpose, documents will be filed in one of six sections:  performance, service, restricted, medical, other, or State/Territory.  Table B-1 (Authorized Documents) provides guidance for filing the DA Form 2627 in the OMPF.  The DA Form 2627 will be filed in either the performance or restricted section of the OMPF, as directed by item 4b of the DA Form 2627.

7.  Army Regulation 27-10 (Military Justice), chapter 3 (NJP)), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.  Chapter 3, Section V (Suspension, Vacation, Mitigation, Remission, and Setting Aside), paragraph 3-28, shows that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15.  In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case.

   a.  If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

   b.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment, the commander will record the basis for this action on DA Form 2627–2 (see para 3–38b, below).  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 8 September 2014, and the allied documents that are filed in her OMPF should be removed because the DA Form 2627 was set-aside.

2.  By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal.  The evidence of record shows the DA Form 2627 that is under review was wholly set-aside by the superior authority when he issued a DA Form 2627-2 based on the findings and recommendations of an approved AR 15-6 investigation.  Moreover, the evidence of record shows the IO of the AR 15-6 recommends, and the superior authority of the commander who imposed the NJP, support the complete removal of the NJP from all personnel records.

3.  Therefore, in view of the facts of this case, it would be appropriate to correct the applicant's records by removing from the performance section of her OMPF the DA Form 2627, dated 8 September 2014, and all allied documents related to the DA Form 2627 that are filed in the restricted section of her OMPF, including copies of those documents that may be filed in other sections of her AMHRR and any other personnel records.

BOARD VOTE:

___X____  ___X____  ___X____ GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from her Official Military Personnel File the DA Form 2627, dated 
8 September 2014, and all allied documents that are filed in the performance and the restricted sections of her Official Military Personnel File, including copies of those documents that may be filed in other sections of her Army Military Human Resource Record and any other personnel records.

2.  To ensure this decision results in no unintended harm to the individual concerned, this Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing.  The Record of Proceedings and associated documents will not be filed in the individual's Official Military Personnel File or any other section of the Army Military Human Resource Record.




      _______ _   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)                                         AR20150011248



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ABCMR Record of Proceedings (cont)                                         AR20150011248



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