IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20080003903 


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, in effect, that a DA Form 2627, Record of Proceedings under Article 15, UCMJ, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that during the time his discharge was being processed, he was forced to find things to do in order to get out.  Out of these was his charge for marijuana.  He states, they stated in his Article 15 that he agreed to the distribution of and that he tested positive for that drug and neither ever happened.

3.  Now, the applicant adds, in effect, he is trying to reenlist after nearly 10 years and they are using this against him to prevent him from going back in.  He asks that if the Board or whomever else checks background histories it will be found that he has not gotten into any trouble with the law and that he is drug and disease-free.

4.  The applicant continues by stating, in effect, that whoever was taking care of his documents was either changing around words or at the time, if it was actually signed by him he was mislead into signing something that he did not fully know what it was.  He believes that if he really would have admitted to distribution of drugs it would have led to a court-martial instead and they would have further investigated to find out if he had a dealer and/or who he distributed to.  Also, on top of that, he never tested positive for drugs.  They tried testing him 5 or 6 times 

back-to-back and only did so because he came up negative each time.  He has also discovered that supposedly a bar to reenlistment could only prevent him from re-joining and he doesn't believe they would upgrade him to an honorable discharge if it was that serious.

5.  The applicant further states, in effect, that when he was in previously, he worked hard at his job and kept working his way towards the top.  He made E-4 within less than 3 years.  At the time he got all the discharges, he seriously believes he was too young and didn't really know in what direction he wanted to take his life and even after confronting his captain about simply wanting to get out, he was told and was forced to have to get into trouble in order to get out, none of which he wanted to do.  Shortly after leaving, he realized the error of his ways and, being told he was eligible to reenlist after 2 years, he has wanted to re-join since then but plans in life have prevented him from doing so until now.

6.  The applicant summarizes that he is 10 years older now, much more mature, and knows this is the direction in life he wants and wants to retire from the Army.  He reiterates that he has kept himself out of trouble and drug free; and, he sees no reason why he should not have the second chance to love and serve his country.  Finally, the applicant believes that what is causing the current road block is merely an excuse and still false pretenses regardless of what the Article 15 may state and asks the Board to please remove it [the Article 15] so he can have the chance to serve his country once again. 

7.  The applicant provided no additional documents 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 enlisted in the US Army Reserve on 2 April 1996.  On 30 July 1996, he enlisted in the Regular Army.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 13P, Multiple Launch Rocket System (MLRS) Operational Fire Direction Specialist. 

3.  On 28 October 1997, the applicant received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties on 15 October 1997 and for failing to go at the time prescribed to his appointed place of duty on 15 October 1997.

4.  The evidence shows that on 4 December 1998, the applicant received punishment under the provision of Article 15 of the UCMJ, for wrongfully possessing some amount of marihuana, on 29 October 1998; for absenting himself from his unit without authority on 19 October 1998 and remaining so until 22 October 1998; for failing to go to his prescribed place of duty, on 16 October 1998; and for willfully disobeying a lawfully given order by his superior noncommissioned officer, on 18 and on 19 October 1998.  The punishment imposed was a reduction to pay grade E-1, forfeiture of $463.00 per month for 2 months (suspended to be automatically remitted if not vacated before 2 February 1999), 45 days extra duty and 14 days restriction.  The applicant did not appeal the punishment imposed.  Directions for the filing of the DA Form 2627 in either the performance section or in the restricted section of his OMPF were not given in deference to the applicant's pay grade and in compliance with the applicable regulation.

5.  On 3 February 1999, the suspension of the punishment of forfeiture of $463.00 per month for two months imposed on the applicant on 4 December 1998 was vacated.  The vacation of the punishment imposed was based on the applicant having been disrespectful in language towards his superior noncommissioned officer on 12 January 1999, for willfully disobeying a lawfully given order by his superior noncommissioned officer on 12 January 1999, and for being derelict in the performance of his duties on 26 January 1999.

6.  The applicant was processed for separation from the Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12C(2).  The records of non-judicial punishment which are on file in the applicant's OMPF were not placed there on their own but were placed there because they were used, in part, as a basis for the applicant's discharge.

7.  The applicant was discharged with a general, under honorable conditions, discharge, in the rank and pay grade of Private, E-1, on 5 March 1999, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), for misconduct.  On the date of his discharge, the applicant had completed 2 years, 7 months, and 3 days creditable active military service, with 3 days time lost.

8.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM.  It states, in pertinent part, that the decision whether to file a record of nonjudicial punishment in the performance section of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  Paragraph 3-37b (2) states, in pertinent part, that for Soldiers, in the rank of sergeant and above, the original of the DA Form 2627 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 final, subject to review by superior authority.

9.  Army Regulation 600-8-104 provides policy and procedure for maintenance of a Soldier's personal information.  

10.  Army Regulation 600-8-104, in pertinent part, provides the following instructions for the filing of a DA Form 2627 issued on or after 25 January 1990:  the Record of Proceedings under Article 15, UCMJ for Soldiers in the rank of Specialist or Corporal or below will be filed only in local non-judicial punishment files. The DA Form 2627 will not be filed in the MPRJ or the OMPF of these soldiers.

11.  Army Regulation 600-8-104, in pertinent part, provides the following instructions for the filing of case files for approved separations:  Case files for approved separations, including elimination board proceedings, administrative discharge actions, resignations instead of board action, or separations for the good of the service will be filed in the general administrative section of the OMPF.

12.  Paragraph 2-4.a. states that once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from an OMPF or moved to another part of the OMPF unless directed by, among other agencies, the Army Board for the Correction of Military Records (ABCMR) or the OMPF custodian when documents have been improperly filed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the removal of a record of nonjudicial punishment which was properly filed in his OMPF.  The evidence shows that the applicant was processed for separation from the Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12C(2).  The records of non-judicial punishment which are on file in the applicant's OMPF were not placed there on their own but were placed there because they were used, in part, as a basis for his discharge.  These documents are an intricate part of the discharge "packet" prepared by command and will not be separated from that discharge paperwork.

2.  The evidence also shows that it appears that the DA Form 2627s were appropriately administered, in particular the Article 15 which was administered on 4 December 1998 that contained a reference to the possession of marijuana.  The applicant was given an opportunity to appeal the punishments at the time the Article 15s were imposed; however, he opted not to appeal the punishment.

3.  Applicable regulation states that, once a document has been directed for filing in the OMPF, and the applicant's separation packet appears to have been properly filed in accordance with applicable regulations, there are no provisions for its removal from the applicant's OMPF.  Since the separation "packet" was filed in the OMPF in accordance with applicable regulation and it is presumed to be administratively correct, neither the separation "packet" not the Article 15s will be removed from his OMPF.

4. Contrary to the applicant's assertion, there is no indication on any of the two Article 15s that he was involved in the distribution of marijuana.  Likewise, there is no indication he was administered nonjudicial punishment because he tested positive for the abuse of marijuana or any other drug.  The Article 15 is clear; it was administered because the applicant was in possession of some amount of marijuana which is a violation of the UCMJ.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement; therefore, the Article 15s which are on file in the applicant's OMPF will remain filed as enclosures to the applicant's separation "packet" in his OMPF and will not be removed.  The applicant's request is therefore denied.

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 that 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)                                         AR20080003903





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080003903



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1