IN THE CASE OF:	  

		BOARD DATE:	  	   7 April 2009

		DOCKET NUMBER:  AR20080016195 


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, removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), from his official military personnel file (OMPF).

2.  The applicant states that he would like the Article 15 removed from his OMPF because it is over 20 years old and he received it during his first active duty tour. He also states, in effect, that his branch manager told him that the record of nonjudicial punishment (NJP) was stopping him from being selected for a nominative assignment.

3.  The applicant provides no additional documents in support of his request.

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 military personnel records show he entered active duty on 2 October 1984 and trained in military occupational specialty 31M (Multichannel Communications Equipment Operator).  The highest grade held on this active duty tour was private first class/pay grade E-3.

3.  On 5 June 1987, the applicant accepted nonjudicial punishment under Article 15, UCMJ, for the wrongful use of some amount of a controlled substance between 25 February 1987 and 26 March 1987.  His punishment was reduction to private/pay grade E-1, a forfeiture of $200.00 per month for 2 months, and 45 days of extra duty.  The commander imposing the NJP directed that it be filed in the performance fiche of the OMPF.

4. On 1 December 1987, the applicant was honorably discharged after completion of his required active duty service and transferred to the U.S. Army Reserve.  On 20 May 2005, the applicant enlisted in the Regular Army.  He is currently a staff sergeant and is assigned to Fort Meade, MD.

5.  Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice.  Chapter 3 provides that NJP is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  It also provides that the officer imposing NJP determines whether the report of NJP (DA Form 2627) is to be filed in the Soldier’s restricted or performance fiche.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  This regulation states, in pertinent part, that the restricted fiche is the OMPF section for historical data that may normally be improper for viewing by selection boards or career managers.  The restricted fiche ensures that an unbroken, historical record of a member's service, conduct, duty performance, evaluation periods, and corrections to other parts of the OMPF is maintained.  It is intended to protect the interests of the member and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the Article 15 in question should be removed from his OMPF was carefully considered and found to have partial merit.
2.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.

3.  The record of NJP is filed in accordance with the applicable Army regulation.  It is noted that the applicant’s commander ordered the record of NJP filed in the performance fiche of the applicant’s OMPF.

4.  Twenty years have passed since the applicant received the Article 15.  The fact that he has been able to reenlist in the Army and be promoted in the noncommissioned officer ranks since that time clearly shows the applicant has corrected his deficiency and has continued with his career.  His desire to have the Article 15 removed from his files based upon his subsequent service record is understandable.  However,  in the event a selection choice comes down between two Soldiers with an equal record of service, all information properly filed on an OMPF must be available to board members in order to equitably make their selection choice.  Given the above and the fact the Article 15 was properly filed on his OMPF, it would not be equitable to remove the Article 15 from his records. 

5.  Therefore, in view of the above, there is substantive clear and convincing evidence to prove the intent of the Article 15 has been served and it would be in the best interest of the Army to move the Article 15, dated 5 June 1987, to the restricted section of the applicant's OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by moving the applicant’s Article 15 that was administered on 5 June 1987 and related documents from the performance section to the restricted section of his OMPF.
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the Article 15 from his OMPF.



      __________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)                                         AR20080016195



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ABCMR Record of Proceedings (cont)                                         AR20080016195



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