AR20160006772

IN THE CASE OF:

BOARD DATE: 12 May 2016

DOCKET NUMBER: AR20160006772

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

__x_____ ___x____ ___x_____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 12 May 2016

DOCKET NUMBER: AR20160006772

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.

IN THE CASE OF:

BOARD DATE: 12 May 2016

DOCKET NUMBER: AR20160006772

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 DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), accepted on 26 May 2004
* to personally appear before the Board

2. The applicant states, in effect:

* his restricted folder within his official military personnel file (OMPF) contains an Article 15
* he received this Article 15 when he was an enlisted Soldier; in 2004, he applied for and was appointed as an active duty Warrant Officer (WO)
* he contends the fact he was discharged from his enlisted status, sworn in as a WO, and granted a waiver to serve, all should result in favorable consideration of his request to remove this document so that it will not affect his potential for future military service
* he feels it is unjust that something that occurred while he was an enlisted Soldier should have an impact on his service as a WO
* he was punished by the Article 15, served his punishment, and has upheld a stellar performance and career since; he contends justice has been served and any possible negative effect the Article 15 may have on future promotions is almost like double-jeopardy

3. The applicant provides a DA Form 2627.

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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. The applicant enlisted in the Regular Army (RA) on 18 May 2001.

3. On 21 May 2004, the Division Artillery commander offered him NJP. He was given 48 hours to consult with counsel.

a. He was charged with discharging, through negligence, an M16A2 rifle in the clearing barrel of the Military Police Station.

b. On 26 May 2004, after having been afforded the opportunity to consult with counsel, the applicant indicated he did not demand trial by court-martial, and elected a closed Article 15 hearing. He further indicated that he did not request someone to speak in his behalf, and would be presenting matters in defense, mitigation, and/or extenuation. The applicant’s commander found him guilty of the charge.

c. His punishment consisted of a suspended reduction in rank to specialist/E-4, which was to be automatically remitted, if not vacated before, on or about 26 July 2004 (his OMPF is void of any indication this suspension was ever vacated).

d. He elected not to appeal the Article 15 punishment, and the imposing authority directed the Article 15 be filed in the restricted portion of the applicant’s OMPF.

4. He was honorably discharged from the RA on 3 March 2010 to accept appointment as a WO in the Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 8 years, 9 months, and 16days of net active service this period. His rank/grade was staff sergeant/E-6. He had deployed three times to Iraq and once to Afghanistan. He was awarded or authorized:

* Bronze Star Medal
* Army Commendation Medal (5th Award)
* Army Achievement Medal (2nd Award)
* Army Good Conduct Medal (2nd Award)
* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Afghanistan Campaign Medal with one bronze service star
* Iraq Campaign Medal with two bronze service stars
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* Korean Defense Service Medal
* Noncommissioned Officer Professional Development Ribbon (3rd Award)
* Army Service Ribbon
* Overseas Service Ribbon
* Presidential Unit Citation (Army)
* Driver and Mechanic Badge with Mechanic Bar

5. On 4 March 2010, he executed his oath of office, having been appointed as a Reserve WO. He is currently serving on active duty in the rank of chief warrant officer two (CW2).

REFERENCES:

1. 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.

a. 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.

b. 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.

c. Paragraph 3-6 addresses filing of NJP and provides that a commander’s decision whether to file a record of NJP in the performance section 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 weigh carefully 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
* 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 section
* 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 section

d. Paragraph 3-18 (Notification and Explanation of Rights), subparagraph h (Hearing), states:

* in the presence of the commander, the Soldier will be allowed to personally present matters in defense, extenuation, or mitigation
* the imposing commander is not bound by the formal rules of evidence before courts-martial, and may consider any matter reasonably considered to be relevant
* punishment will not be imposed unless the commander is convinced beyond a reasonable doubt the Soldier committed the offense

e. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF. It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR. It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

2. Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the OMPF.

a. Paragraph 3-10 (Document masking in the interactive Personnel Electronic Records Management System (iPERMS) states document masking is the act of moving specifically identified documentation from the performance folder to the restricted folder of the OMPF. For Soldiers transitioning from enlisted to officer, all Article 15 documents will be moved to the restricted folder. All performance documents which do not cross over from enlisted to officer will be masked, with the exception of awards authorized for permanent wear. If the document can be earned by both officer and enlisted ranks, it will not be masked.

b. Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or iPERMS. Table B-1 states the Article 15, UCMJ, is filed in either the “Performance” or “Restricted” folder as directed by item 4b or item 5 of the DA Form 2627.

3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION:

1. The applicant’s request for a personal appearance hearing was carefully considered; however, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2. The applicant requests removal of the Article 15 accepted on 26 May 2004. His basis for removal is the offense occurred when he was an enlisted Soldier. His duty performance, since being administered the Article 15, has been exceptional, and, because of his demonstrated potential, he was appointed as a WO. He is currently serving on active duty as a CW2.

3. By regulation, the only basis for removal of an Article 15 is a determination that, under all the circumstances of the case, there is clear and compelling evidence of an injustice. The regulation further requires that the evidence show an unwaived legal or factual error occurred which clearly and affirmatively injured the substantial rights of the Soldier.

4. His Article 15 proceedings were conducted in accordance with law and regulation, and he was afforded all rights and due process. There is insufficient evidence of record to show he was harmed by either an unwaived legal or factual error. The evidence does not support the conclusion the DAForm2627 was untrue or unjust.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160006772

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160006772

6

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2