IN THE CASE OF:	  

		BOARD DATE:	        26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080019251 


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 reconsideration of an earlier request that a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) imposed on 8 November 2006 be removed from the restricted section of his Official Military Personnel File (OMPF).  As new issues, he requests that, at the very least, the Article 134 offense on the DA Form 2627 be removed and that he be reconsidered for promotion by a Standby Advisory Board (STAB). 

2.  The applicant states, in effect, that he was found not guilty of the Article 134 offense; however, the imposing commander failed to line out this offense on the DA Form 2627 in accordance with Army Regulation 27-10 (Military Justice) and Note 5 on the Reverse of the DA Form 2627.  He contends that the imposing commander made two "short tick" lines through the Article 134 offense which does not in any way prevent the reading of the language of the offense.  This failure resulted in a fundamental injustice to him by significantly prejudicing the promotion board's decision concerning his file.

3.  The applicant points out that Note 5 on the Reverse of the DA Form 2627 states, "Offenses determined not to have been committed will be lined out."  He also points out that although Note 5 does not properly define "lined out," Army Regulation 27-10, chapter 3, which governs the use of a DA Form 2627 provides an illustrated example of "lined out" verbiage on a completed DA Form 2627.         

4.  The applicant states that he has always been a stellar performer and, even during the evaluation period that corresponds to the DA Form 2627 in his file, he was rated "Among the Best" and received superior ratings for overall performance and overall potential for promotion and positions of greater responsibility by his senior rater and reviewer.  He indicates that the memorandum for record provided by his company commander and rater revealed that during this time period he was an otherwise exemplary leader and Soldier.  It is his belief that absent this information in his file he would be competitive for promotion.

5.  The applicant provides eight enclosures outlined on page 3 of his statement in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080004821 on 3 July 2008.

2.  The applicant’s new arguments will be considered by the Board. 

3.  The applicant is currently serving on active duty in the rank of master sergeant.

4.  A DA Form 2627, dated 8 November 2006, shows that nonjudicial punishment was imposed against the applicant for violating a lawful general regulation (wrongfully using his Government computer to send a pornographic email) and being derelict in the performance of his duties (wrongfully using a Government computer during duty hours to send personal email).  Apparently, it was determined that the Article 134 offense was not committed as evidenced by the two perpendicular lines through the offense (however, the language of the offense is legible).  His punishment consisted of a forfeiture of $1,000.00 pay per month for 2 months.  The issuing commander directed that the original DA Form 2627 be filed in the performance section of the applicant’s OMPF.

5.  A review of the restricted section of the applicant’s OMPF on the Interactive Personnel Electronic Records Management System revealed a copy of the DA Form 2627 with two perpendicular lines through the Article 134 offense.

6.  In support of his claim, the applicant provided a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period covering 1 June 2006 through 9 November 2006.  This form shows, in pertinent part, that he was rated "Among the Best" by his rater, his overall performance was rated "1" [Successful] by his senior rater, and his overall potential for promotion and/or service in positions of greater responsibility was rated "1" [Superior] by his senior rater.  His NCOERs for the periods from 10 November 2006 through 31 March 2007 and from 1 April 2007 through 31 March 2008 also show that he was rated "Among the Best" by his rater, his overall performance was rated "1" by his senior rater, and his overall potential for promotion and/or service in positions of greater responsibility was rated "1" by his senior rater.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that a DA Form 2627 will be filed in the performance or restricted section of the OMPF as directed by the issuing commander (item 5 on DA Form 2627).  Allied documents accompanying the Article 15 will be filed in the restricted section.    

8.  Note 5 on the Reverse of the DA Form 2627 states, in pertinent part, that offenses determined not to have been committed will be lined out.  The illustrated sample of a DA Form 2627 in Army Regulation 27-10 shows that each character/letter in the "lined out" entry has a slash through it making it virtually impossible to read.    

9.  Army Regulation 600-8-19 prescribes the policies and procedures for promotion of enlisted personnel on active duty.  The regulation states, in pertinent part, that the Deputy Chief of Staff, G-1 or designee may approve cases for referral to a Standby Advisory Review Board upon determining that a material error existed in a Soldier's OMPF when the file was reviewed by a promotion board.  Paragraph 4-14c of Army Regulation 600-8-19 states that error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's arguments pertaining to the Article 134 offense on his DA Form 2627 has merit.  Note 5 on the Reverse of the DA Form 2627 states that offenses determined not to have been committed will be lined out.  The Article 134 offense on the applicant's DA Form 2627 was not lined out and the language of the offense is legible; therefore, it appears an injustice has occurred.  Because this offense is derogatory, it is reasonable to presume that this information is prejudicial to his career.  As a result, it would be equitable to remove the Article 134 offense from the DA Form 2627 in question.         



2.  There is no evidence that the DA Form 2627 was improperly imposed.  Although the issuing commander directed that the original DA Form 2627 be filed in the performance section of the applicant’s OMPF, it is noted that the DA Form 2627 was filed in the restricted section of the applicant’s OMPF.  However, the governing regulation states that a DA Form 2627 will be filed in the performance or restricted section of the OMPF.  Based on the foregoing, there is no basis for granting the applicant's request that the DA Form 2627 be removed from the restricted section of his OMPF.

3.  Considering the change made to the contested DA Form 2627, any reasonable doubt concerning the applicant's chances for promotion should be resolved in his favor and his records should be considered by a STAB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to the applicant's new issues of removing the Article 134 offense on the DA Form 2627 and that he be reconsidered for promotion by a STAB, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the Article 134 offense from the DA Form 2627 imposed on 
8 November 2008; and

	b.  making his records available to the next scheduled Standby Advisory Board for promotion to sergeant major under the Fiscal Year (FY) 2007 and
FY 2008 criteria.  

2.  In regard to the applicant's request for reconsideration of his request to remove the DA Form 2627 imposed on 8 November 2006 from the restricted section of his OMPF, 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 to amend the decision of the ABCMR set forth in Docket Number AR20080004821 dated 3 July 2008.




      ________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)                                         AR20080019251



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ABCMR Record of Proceedings (cont)                                         AR20080019251



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