BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150012540 


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 correction to her record to remove a record of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), from the restricted folder of her Army Military Human Resource Record (AMHRR) (formerly known as the official military personnel file (OMPF)).

2.  The applicant states:

* DA Form 2627 (TEST) (Record of Proceedings Under Article 15, UCMJ) which was used was inaccurate in accordance to Army Regulation policies.  
* unfavorable information files in her OMPF must meet privacy act standards of accuracy, relevance, timelines, and completeness
* by not allowing the Army to review a qualified Soldier to be considered by the Selection Boards for Promotion or increased levels of responsibility is depriving the Army of a great noncommissioned officer (NCO)

3.  The applicant provides:

* DA Form 2627 (TEST)
* DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)
* DA Form 4856 (Developmental Counseling Form)
* Enlisted Record Brief


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.  On 13 January 2004, the applicant enlisted in the Regular Army in the rank/pay grade of private first class (PFC)/E-3.  After initial training, she was awarded military occupational specialty 42A (Human Resource Specialist).  

3.  The restricted folder of her AMHRR contains several documents related to an incident that took place on 13 November 2012:

	a.  A DA Form 4856 dated 11 October 2012, shows she was given event-oriented counseling by the battalion sergeant major (SGM) for violating Article 91, UCMJ, for insubordinate conduct toward a warrant officer or noncommissioned officer, and Article 92, UCMJ, by failing to obey an order.  A summary of the counseling shows she was disrespectful by hanging up on the SGM while he was still talking and by not following lawful and specific instructions given to her by the SGM.  She indicated she agreed with the information provided.  

	b.  A DA Form 268 dated 16 October 2012, shows her company commander initiated a flag against her for adverse action.

	c.  A DA Form 2627 shows the applicant's battalion commander imposed NJP against her on 13 November 2012 for being disrespectful in deportment toward the command sergeant major by hanging up on him while he was talking to her.  Her punishment was extra duty for 14 days and restriction to the limits of the company area, dining/medical facility, and place of worship for 14 days.  The applicant did not appeal the NJP.  The imposing authority directed filing the DA Form 2627 in the restricted folder of the applicant's AMHRR.

4.  The applicant states the DA Form 2627 was inaccurate in accordance to Army Regulation but does not state what the error was.  In addition, she states that her NJP will deprive the Army from reviewing her records for promotion and for increased responsibility.

5.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.  Chapter 3 states NJP is 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 UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

	a.  Paragraph 3-28a states the basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of NJP 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 3-37a states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folders in the AMHRR will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by superior authority.  For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the AMHRR.

6.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program.  It states that once placed in the AMHRR, a document becomes a permanent part of that file.  The document will not be removed from the AMHRR or moved to another part of the AMHRR unless directed by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of a record of NJP from the restricted folder of her AMHRR.

2.  The applicant states the DA Form 2627 (TEST) used during her NJP was inaccurate and not accordance to Army Regulation; however, she does not specify what error occurred.  It is noted that she did not appeal the NJP.

3.  With regard to the decision to impose NJP, there is no evidence that she was deprived of her right to present matters in defense, extenuation, or mitigation or that she was deprived of her right to appeal the NJP.

4.  The DA Form 2627 documenting her NJP was filed in the restricted folder of his AMHRR as directed by the imposing authority.  There is no documentary evidence of error or injustice in the imposition of the NJP or in the filing decision.  Therefore, there is an insufficient basis upon which to grant the 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)                                         AR20130016295



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ABCMR Record of Proceedings (cont)                                         AR20150012540



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