IN THE CASE OF:  

		BOARD DATE:  6 October 2015

		DOCKET NUMBER:  AR20150012451 


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 19 July 2013 record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) and all allied documents from his Official Military Personnel File (OMPF).

2.  The applicant states that:

   a.  He is applying to become a chaplain candidate and disclosed his Field Grade NJP information in the application.  He has exhausted all means of obtaining a full record of the NJP action.  He checked the Post Judge Advocate (JAG) Office, his previous battalion and the battalion and brigade of the unit he fell under at the time to no avail.  His interactive Personnel Electronic Records Management System (iPERMS) record is incomplete.  He requests the NJP action be made complete in his records or that it be removed.

	b.  All units affiliated with this action have failed to produce full documentation of this action.  To continue with his career, he needs the documentation.  Since it is unprocurable, he believes it should be removed from his record so he may progress accordingly or if the documentation can be found to update his records for full accuracy.

3.  The applicant did not provide any additional supporting documentation.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 6 August 1997.  He has served on active duty and in the U.S. Army Reserve (USAR).  He last reenlisted in the RA on 18 October 2010 for 6 years.  

2.  On 19 July 2013, while serving in the rank of sergeant (SGT)/E-5 in Afghanistan, he accepted NJP for:

	a.  assaulting private first class (PFC)  M____ M_____ on 2 March 2013 by kicking her in the right shin;
 
	b.  assaulting PFC M____ M_____ on 4 March 2013 by striking her Army combat helmet with a crescent wrench;

	c.  maltreating PFC M_____ M_____ , a person subject to his orders, on 
5 March 2013 by pouring water on her head; and

	d.  assaulting specialist (SPC) S__ Z____ by pushing him on 12 June 2013.

3.  The punishment consisted of reduction to SPC, forfeiture of pay per month for two months, and extra duty for 45 days.  He did not appeal the punishment.

4.  The imposing commander directed the filing of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) in the performance section of the applicant's OMPF.  Allied documents are listed as –

* DA Form 4856 (Developmental Counseling Form) (2)
* DA Form 2823, (Sworn Statement) – SGT D____ T____
* DA Form 2823, PFC M____ M_____
* DA Form 2823 SGT Z_____ O____, who witnessed the applicant hitting PFC M_____'s helmet and pouring water on her
* DA Form 2823, SPC S__ Z____

5.  A review of his OMPF reveals the NJP is filed in the performance section folder of his OMPF and the allied documents are filed in the restricted folder of his OMPF.

6.  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 3-28 addresses setting aside and restoration.  This 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 Article 15.  In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case.  If all findings are set aside, then the 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 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.  Paragraph 3-37b(1)(a) states that for Soldiers in the ranks of sergeant (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 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.  Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the rank of SGT or higher that have not been wholly set aside and recorded in the restricted section.

	c.  Paragraph 3-42b addresses the transfer of punishment wholly set aside or changes of status.  It states that all DA Forms 2627 of commissioned officers and enlisted Soldiers filed in the OMPF reflecting that punishments have been wholly set aside since 1 September 1979 will routinely be transferred to the restricted section.

	d.  Paragraph 3-43 contains guidance for the transfer or removal of DA Forms 2627 from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records.  It further indicates there must be evidence that demonstrates error or injustice to a degree justifying removal.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. The regulation identifies those documents that are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  It shows the DA Form 2627 is filed in either the performance or restricted section of the OMPF as directed by the imposing commander on the DA Form 2627.

8.  Army Regulation 600-8-104 also provides that the restricted section 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.  It further provides that documents in the restricted section 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 applicant contends his 19 July 2013 NJP record should be removed from his OMPF because he wants to become a chaplain candidate.  He claims the record is incomplete, and since he has been unable to locate the complete record, the action should be removed from his record. 

2.  The evidence of record confirms the applicant accepted NJP for assaulting and maltreating subordinate Soldiers.  The available evidence also confirms the NJP proceedings were conducted in accordance with law and regulation. 

3.  Contrary to his assertions that the NJP record is not complete, the available evidence shows the completed NJP, including the allied supporting documents, is properly filed in his OMPF.

4.  The applicant failed to demonstrate the NJP action was unjust or untrue or that removal would be in the best interest of the Army.
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)                                         AR20140008460



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ABCMR Record of Proceedings (cont)                                         AR20150012451



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