IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080010499 


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 28 July 2006, from his Official Military Personnel File (OMPF).  

2.  The applicant states that the Article 15 currently filed in the restricted portion of his Official Military Personnel File (OMPF) may potentially harm his career in the Army.  He further adds that after serving his punishment, he continued to Soldier on and is serving his third tour in support of Operation Iraqi Freedom (OIF).  He concludes that he intends to reclassify his military occupational specialty (MOS) to 51C (Acquisition, Logistics, and Technology (AL&T) Contracting Noncommissioned Officer (NCO)) and one of the prerequisites of this MOS is not to have any derogatory record in the OMPF.

3.  The applicant provides a copy of his DA Form 2166-8 (NCO Evaluation Report) for the period 20070501 to 20080430, in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army staff sergeant (SSG)/E-6, holding MOS 44C (Finance Specialist).  He initially enlisted for a period of 4 years on 3 August 2000 and subsequently executed a 6-year reenlistment on 10 January 2004.  He was promoted to sergeant (SGT)/E-5 on 1 September 2004 and SSG/E-6 on 1 December 2007.

2.  On 28 July 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for violating a lawful general order, 
Multi-National Division-Baghdad (MND-B) General Order Number 1, dated 13 May 2006, by wrongfully having a visitor of the opposite gender in his living quarters.  His punishment consisted of reduction to specialist (SPC)/E-4, a forfeiture of $967.00 pay for 2 months, 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.

3.  The applicant submitted a copy of his NCO Evaluation Report for the period from 1 May 2007 to 30 April 2008 attesting to his outstanding performance and leadership potential.

4.  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).

5.  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 shown commitment to the Army as evidenced by his reenlistment, multiple deployments in support of OIF, and excellent NCO Evaluation Report.  Nevertheless, he violated a lawful general order, in a combat environment and as a noncommissioned officer.  He was accordingly punished and his Article 15 was directed to be filed in the restricted portion of his OMPF.

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.  The evidence of record confirms the Article 15 in question is filed in the restricted portion of the applicant's OMPF.  It is not viewed by personnel managers when making normal personnel management decisions and it is not included in promotion files reviewed by senior enlisted promotion board members for promotions below the grade of E-9 .  As a result, there is no indication that the applicant may suffer an injustice due to this document being filed in the restricted portion of his OMPF.

4.  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)                                         AR20080010499



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ABCMR Record of Proceedings (cont)                                         AR20080010499



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