RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2008
	DOCKET NUMBER:  AR20080001263 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Ms. Sherri V. Ward

Member

Mr. Jeffrey C. Redmann

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, 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)], dated 2 March 1981, from his Official Military Personnel File (OMPF).  

2.  The applicant states that he had one instance of accepting nonjudicial punishment for marijuana use in 1981 and that it was the only time.  He was discharged in 1986 and reentered the Army in 2003.  He is now a staff sergeant (SSG)/E-6, competing for promotion to sergeant first class (SFC)/E-7 and also applying to become a warrant officer.  He states that the Article 15 in question might hurt his chances for progression and concludes that the Article 15 has long served its purpose and keeping it filed in his records after 27 years is unjust. 

3.  The applicant provides a copy of DA Form 2627, dated 2 March 1981; a copy of permanent orders awarding him the Good Conduct Medal (3rd Award), dated 13 April 2006; and copies of his DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) for the periods 200407-200506, 200507-200606, and 20060701-20070630, in support of his application.

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.  The applicant's records show that he initially enlisted in the Regular Army on 20 February 1980 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 16C (Hercules Missile Crewmember).  He subsequently reenlisted on 10 November 1983 and was honorably discharged on 9 November 1986.    


3.  On 2 March 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for, on or about 2 February 1981, wrongfully possessing one ounce, more or less, of marijuana.   His punishment consisted of reduction to the grade of private/E-1 (suspended until 2 September 1981), a forfeiture of $200.00 pay, 30 days of extra duty, and 14 days of restriction.

4.  The applicant's records further show that he enlisted in the U.S. Army Reserve (USAR) on 14 February 1995 and remained in the USAR until he enlisted in the Regular Army on 14 May 2003.  He was awarded MOS 14T (PATRIOT Launching Station Enhanced Operator/Maintainer).  He was promoted to sergeant (SGT)/E-5 on 25 November 1997 and to SSG/E-6 on 1 September 2005. 

5.  The applicant submitted copies of orders awarding him the Good Conduct Medal (3rd Award) and his NCOERs attesting to his faithful service, outstanding performance, and leadership potential.

6.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF.  It states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF.  It also provides provisions that allow the transfer of a DA Form 2627 from the performance portion to the restricted portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.  It further stipulates that appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.  Where the OMPF is electronic, the restricted section and the performance section mean the restricted section and the performance section of Personnel Electronic Management System (PERMS).

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Paragraph 
3-15c(3a) of regulation in effect at the time, states, in pertinent part, that in cases of persons serving on active duty in an enlisted status and having completed 3 years or less of active Federal military service at the time of the offense alleged, except for originals designated for filing in the Military Personnel Records Jacket (MPRJ) (the Article 15 punishment includes an unsuspended reduction in grade or unsuspended forfeiture of pay), the Article 15 is filed by the appropriate custodian of the OMPF for permanent filing in the performance portion.

8.  Paragraph 3-37(b-1) of Army Regulation 27-10, currently in effect, states that an for Soldiers SPC or CPL and below (prior to punishment) the original Article 15 will be filed locally in unit nonjudicial punishment or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority (GCMCA), whichever occurs first.  

9.  Paragraph 3-43 of Army Regulation 27-10, currently in effect, contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF.  It states, in pertinent part, 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.

DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

2.  The evidence of record confirms the Article 15 in question is filed in the performance portion of the applicant's OMPF.  As such, it is viewed by personnel managers when making normal personnel management decisions, and it is included in promotion files reviewed by senior enlisted promotion board members.  As a result, there is an indication that the applicant may suffer an injustice due to this document being filed in the performance portion of his OMPF.

3.  The applicant has had no recurring incidents of indiscipline since his unfortunate incident in March 1981, 27 years ago.  He has shown commitment to the Army as evidenced by his reentry into the Regular Army, multiple reenlistments, excellent NCO Evaluation Reports; promotion to SSG/E-6; and award of the Good Conduct Medal (3rd Award).  
4.  Under current standards, an Article 15 for a SPC/E-4 and below is locally filed and thereafter destroyed at the earliest of two years or the Soldiers' transfer to another GCMCA.  The Army first incorporated a somewhat different version of this provision on 10 July 1987, which would have equally applied to a PV2/E-2 with less than three years in service in 1986. 

5.  The applicant, after having initially served about six years, had a nine year gap in service before he enlisted in the USAR and then in the Regular Army.  Most enlisted Soldiers, and presumably most of the applicant's peers, do not have such extended gaps in service.  For them, an Article 15 received early in their career would have never made it to their OMPF.  These additional circumstances provide support for the application of current standards to the applicant's Article 15 and its removal from his OMPF. 

6.  The applicant's date of rank to SSG/E6 is 1 September 2005.  He will soon compete for promotion consideration to SFC/E-7.  However, the existence of this illegible Article 15 in his performance section is a detractor that sticks out as soon as his records are reviewed.  There is no harm to the Army or to the Soldier if this Article 15 is removed from his OMPF.  Therefore, in the interest of justice, the applicant is entitled to relief. 

BOARD VOTE:

__mkp___  __svw___  __jcr___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION












BOARD DETERMINATION/RECOMMENDATION:

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, dated 2 March 1981 from the applicant's Official Military Personnel File (OMPF).





						Margaret K. Patterson
______________________
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.