IN THE CASE OF:	  

	BOARD DATE:	  08 July 2008

	DOCKET NUMBER:  AR20080006453 


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, the nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) that he received on 29 May 2002 be removed from his performance file of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, he has overcome his past indiscretion and that he has proven he is a better Soldier and a better person.  He further states he has demonstrated his full capabilities to perform as a senior noncommissioned officer (NCO).  He further states the time has come for him to move on in his career but the record of NJP on his performance file has become a road block to his achieving his goals. 

3.  The applicant provides no additional evidence or official documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 3 December 1992 for a period of 4 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 75B (Personnel Administration Specialist).

2.  On 17 June 1996, the applicant reenlisted for a period of 4 years.  The applicant extended his enlistment on four occasions for a total period of 
25 months, changing his expiration of term of service to 16 July 2002.
3.  On 29 May 2002, the applicant accepted NJP under Article 15, UCMJ, for attempting to wrongfully steal fuel from an official military motor pool fuel point.  The punishment imposed consisted of forfeiture of $473 pay, suspended to be automatically remitted if not vacated before 25 November 2002; 14 days extra duties; and 14 days restriction, 7 days suspended to be automatically remitted if not vacated before 25 November 2002.

4.  The applicant's commander directed the original DA Form 2627 (Record of Proceedings Under Article 15 be filed in the applicant's performance file of his OMPF.  The applicant did not appeal his punishment.

5.  On 3 July 2002, the applicant reenlisted for a period of 2 years.  

6.  In an NCO Evaluation Report (NCOER) for the period from September 2001 to August 2002, the applicant's rater rated his overall potential for promotion and/or positions of greater responsibility as "fully capable."  His senior rater remarked that the applicant had made a one time error in judgment and rated him successful in overall performance and superior in overall potential for promotion and/or service positions of greater responsibility.

7.  On 29 July 2003, the applicant reenlisted for 2 years.

8.  In an NCOER for the period from September 2002 to August 2003, the applicant's rater rated his overall potential for promotion and/or positions of greater responsibility as "fully capable."  His senior rater rated him successful in overall performance and superior in overall potential for promotion and/or service positions of greater responsibility.

9.  On 1 December 2003, the applicant was promoted to staff sergeant

10.  On 25 January 2004, the applicant was awarded the Army Commendation Medal for exceptionally meritorious service during the period from 26 March 2003 to 1 April 2004.

11.  In an NCOER for the period from September 2003 to May 2004, the applicant's rater rated his overall potential for promotion and/or positions of greater responsibility as "among the best."  His senior rater rated him successful in overall performance and superior in overall potential for promotion and/or service positions of greater responsibility.

12.  On 21 September 2004, the applicant reenlisted for an indefinite period.

13.  On 22 October 2004, the applicant was awarded the Army Good Conduct Medal, 4th award, for the period of service from 3 December 2001 to 
2 December 2004.

14.  In an NCOER for the period from June 2004 to May 2005, the applicant's rater rated his overall potential for promotion and/or positions of greater responsibility as "fully capable."  His senior rater rated him successful in overall performance and superior in overall potential for promotion and/or service positions of greater responsibility.

15.  In an NCOER for the period from June 2005 to December 2005, the applicant's rater rated his overall potential for promotion and/or positions of greater responsibility as "among the best."  His senior rater rated him successful in overall performance and superior in overall potential for promotion and/or service positions of greater responsibility.

16.  On 28 March 2006, the applicant was awarded the Army Commendation Medal for exceptionally meritorious service during the period from 23 July 2004 to 23 March 2006.

17.  In an NCOER for the period from 1 January 2006 to 29 December 2006, the applicant's rater rated his overall potential for promotion and/or positions of greater responsibility as "among the best."  His senior rater rated him successful in overall performance and superior in overall potential for promotion and/or service positions of greater responsibility.

18.  The applicant was awarded the Army Commendation Medal for exceptionally meritorious service during the period from 30 March 2006 to 17 March 2007.

19.  In an NCOER for the period from 30 December 2006 to 30 March 2007, the applicant's rater rated his overall potential for promotion and/or positions of greater responsibility as "among the best."  His senior rater rated him successful in overall performance and superior in overall potential for promotion and/or service positions of greater responsibility.

20.  A DA Form 2627 for the applicant's NJP awarded on 29 May 2002 is filed on his performance file of his OMPF in the integrated Personnel Electronic Records Management System (iPERMS).

21.  A DA Form 2627 for the applicant's NJP awarded on 29 May 2002 and all related documents is filed on his restricted file of his OMPF in iPERMS.


22.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; to determine whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and to determine the amount and nature of any punishment if punishment is appropriate.

23.  Army Regulation 27-10 provides that an enlisted Soldier (sergeant and above) may request the transfer of a record of NJP from the performance section of their OMPF to the restricted section.  This request must be supported by substantive evidence that the intended purpose of Article 15 has been served and that transfer of the record is in the best interest of the Army.

24.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket (MPRJ), the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the NJP under Article 15, UCMJ he received on
29 May 2002 should be removed from the performance file of his OMPF.  

2.  The applicant reenlisted within 35 days of his NJP and has reenlisted twice since then.  

3.  Since his NJP, the applicant has continuously been rated as at least "fully capable" for his overall potential for promotion and/or positions of greater responsibility by his raters on his NCOERs.   He has continuously been rated successful in overall performance and superior in overall potential for promotion and/or service positions of greater responsibility by his senior raters on his NCOERS.

4.  The applicant was selected for promotion to staff sergeant within 18 months of his NJP.


5.  Since his NJP, the applicant has been awarded three Army Commendation Medals for exceptionally meritorious service.  He was also awarded his fourth Army Good Conduct Medal, which included the period during which he received his NJP.

6.  In view of the above, there is clearly substantive evidence to show the intended purpose of the applicant's Article 15 has been served.  The applicant's Article 15 and all related documents are currently in the applicant's restricted file. Therefore, in the interest of justice, it would be appropriate to remove the applicant’s DA Form 2627 administered on 29 May 2002 from the performance file of his OMPF.  However, it is also appropriate that the same DA Form 2627 and all related documents be transferred and remain in his restricted file of his OMPF.

BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 transferring the applicant’s DA Form 2627 administered on 29 May 2002 and all related documents from the performance file to the restricted file of his OMPF.



      ___        XXX                ___
                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)                                         AR20080006453



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ABCMR Record of Proceedings (cont)                                         AR20080006453



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