AR20140000035

BOARD DATE: 10 April 2014

DOCKET NUMBER: AR20140000035

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 a DAForm2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2. The applicant states, in effect, the Article 15 was appealed and set aside on
16 November 2013. The appealing authority stated an injustice occurred. It has been over a year since the appeal was granted and the Article 15 should be removed from his records.

3. The applicant provides:

* DAForm2627
* two DA Forms 4187 (Personnel Action), dated 24 July 2012 and 1 August 2012
* DA Form 4856 (Developmental Counseling Form), dated 22 August 2012
* DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 23 August 2012
* Enlisted Record Brief, prepared on 10 September 2012

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Regular Amy on 30 March 1992. He has remained on active duty through continuous reenlistments. He attained the rank of sergeant first class on 1 July 2006.
2. A DAForm2627, dated 4 October 2012, shows nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) for the period 24 July through 1 August 2012. His punishment consisted of a forfeiture of $2,128 pay for 2 months. The issuing commander directed that the original DA Form 2627 be filed in the restricted section of his AMHRR.

3. The applicant appealed the Article 15 and the appeal was reviewed by a JAG attorney, who opined that the proceedings were conducted in accordance with law and regulation, and the punishment imposed was not unjust nor disproportionate to the offense committed.

4. On 16 November 2012, the appellate authority granted the appeal in full, and the finding and sentence were set aside.

5. A review of the restricted section of the applicant’s AMHRR revealed a copy of the DAForm2627, dated 4 October 2012, filed with allied documents.

6. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter
3 implements and amplifies Article 15, UCMJ. Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside. It states 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 UCMJ, Article 15. If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier’s records.

DISCUSSION AND CONCLUSIONS:

1. Evidence of record shows NJP was imposed against the applicant on
4 October 2012 for being AWOL during the period 24 July through 1 August 2012 and the issuing commander directed that the original DA Form 2627 be filed in the restricted section of his AMHRR.

2. His appeal was granted in full, and the findings and sentence were set aside on 16 November 2012. The governing regulation states if all findings are set aside, the Article 15 itself is set aside and removed from the Soldier’s records. The evidence shows the DA Form 2627 and allied documents were filed after the findings and punishment had been set aside.
3. Based on the foregoing, the DA Form 2627 and all related documents this should be removed from the restricted section of the applicant’s AMHRR.

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 the DA Form 2627 imposed on 4 October 2012 and all related documents from the restricted section of his AMHRR.

2. Upon completion of the above, this Record of Proceedings will not be filed in his AMHRR.

_______ _ 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) AR20140000035

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ABCMR Record of Proceedings (cont) AR20140000035

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