IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080008709 


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)], dated 22 June 2000, from the restricted portion of his Official Military Personnel File (OMPF).  

2.  The applicant states that he learned from his mistakes and continued to Soldier on.  He also adds that 7 years is long enough and that the Article 15 has served its purpose.  He concludes that he will compete for promotion to master sergeant (MSG)/E-8 next year, and in effect, the Article 15 in question might hurt his chances for progression.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 2627, dated 22 June 2000. 

	b.  Certificates, dated on miscellaneous dates, showing he was awarded the Bronze Star Medal, two awards of the Army Commendation Medal, and the Army Achievement Medal.

	c.  DA Form 2166-7 (NCO Evaluation Report) for the periods 200107 to 200206, 200207 to 200302, 200303 to 200402, 200403 to 200410, 200411 to 200505, 200506 to 200511, 20051201 to 20061130, and 20061201 to 20070831.



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 is a Regular Army sergeant first class (SFC)/E-7, holding military occupational specialty (MOS) 68W (Healthcare Specialist).  He initially enlisted for a period of 4 years on 18 September 1992 and subsequently executed a series of reenlistments in the Regular Army.  He was promoted to sergeant (SGT)/E-5 on 1 July 2001, staff sergeant (SSG)/E-6 on 1 July 2003, and SFC/E-7 on 1 December 2006. 

3.  On 9 February 2000, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for unlawfully striking his spouse across the left side of her face with an open hand, on or about 1 January 2000; unlawfully striking her in the back of the head with a closed fist, on or about 1 January 2000; and unlawfully pushing her to the ground, on or about 1 January 2000.  His punishment consisted of a forfeiture of $394.00 pay (suspended until 10 March 2000) and 14 days of extra duty.  The imposing commander directed the original DA Form 2627 be filed in the restricted portion of the OMPF.

4.  On 22 June 2000, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for unlawfully pulling two braids out of the head of his spouse, on or about 24 April 2000; unlawfully grabbing by the hair and slamming her head into the wall multiple times, on or about 24 April 2000; unlawfully punching her in the face and stomach with a closed fist, on or about 24 April 1992; wrongfully communicating a threat to her that he would kill her if the Military Police came or words to that effect, on or about 24 April 2000; and being drunk and disorderly which was conduct of a nature that bring discredit upon the Armed Forces, on or about 24 April 2000.  His punishment consisted of reduction to the specialist (SPC)/E-4, a forfeiture of $389.00 pay for 2 months (suspended until 20 December 2000), 45 days of restriction, and 45 days of extra duty.  The imposing commander directed the original DA Form 2627 be filed in the restricted portion of the OMPF.  However, by operation of Army Regulation 27-10 (Military Justice), paragraph 3-37(b)(1)(b), this action was filed in the performance section of the applicant's OMPF, because the applicant already had another Article 15 in the restricted section of the OMPF.

5.  The applicant submitted copies of orders awarding him several commendation/achievement and service awards, as well as his NCO Evaluation Reports 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.  Paragraph 3-37b(1)(b) of Army Regulation 27-10 provides, in pertinent part, that if a Soldier in the rank of sergeant or above already has nonjudicial punishment for misconduct in the restricted section of the OMPF that has not been wholly set aside, subsequent nonjudicial punishment designated for the restricted section of the OMPF will be redirected to be filed in the performance section of the OMPF. 

8.  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 applicant has provided documents that show his commitment to the Army as evidenced by his multiple reenlistments, excellent NCO Evaluation Reports, awards and decorations, and promotion to SFC/E-7.  The subject Article 15, dated 22 June 2000, is appropriately filed in the performance portion of the applicant's OMPF since he already has another Article 15 in the restricted portion of his OMPF.  Nevertheless, the subject Article 15 is not an isolated incident; he has clearly demonstrated a pattern of misconduct.  

2.  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.

3.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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      _______ _   _______   ___
               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)                                         AR20080008709



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ABCMR Record of Proceedings (cont)                                         AR20080008709



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