IN THE CASE OF: .
BOARD DATE: 29 JANUARY 2009
DOCKET NUMBER: AR20090000074
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 that a Record of Proceedings Under Article 15, UCMJ (DA Form 2627) be removed from the restricted portion of his Official Military Personnel File (OMPF).
2. The applicant states, in effect, that he believes that the punishment he received has served its purpose. He goes on to state that at the time of the punishment he had no one to help him prove that he did not commit the offense for which he was accused and had to face the punishment. He goes on to state that since receiving the punishment he has been promoted to the pay grade of E-6 and has received several awards, made the commandant's list at the Basic Noncommissioned Officer Course (BNCOC), and deployed to Iraq. He continues by stating that he always strives to become a better leader and believes that removal of the DA Form 2627 will better his chances for selection to the pay grade of E-7 and will benefit himself, the Army, and the country.
3. The applicant provides a letter addressed to the Department of the Army Suitability Evaluation Board (DASEB) explaining his request to that agency.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the United States Army Reserve (USAR) under the delayed entry program (DEP) on 11 February 1997. He enlisted in the Regular Army on 5 June 1997 for a period of 3 years, training under the airborne/infantry
enlistment option, and assignment to the 82nd Airborne Division. He completed
all of his training at Fort Benning, Georgia and was transferred to Fort Bragg, North Carolina, where he remained until he was honorably released from active duty (REFRAD) on 4 June 2000, due to completion of required service.
2. The applicant enlisted in the Texas Army National Guard (TXARNG) and remained in the TXARNG until he was honorably discharged on 30 April 2003 for the purpose of enlisting in the Regular Army.
3. On 1 May 2003, he enlisted in the Regular Army in the pay grade of E-4 for a period of 3 years. He was married at the time of his enlistment. He was promoted to the pay grade of E-5 on 1 February 2004, while assigned to Fort Bragg.
4. On 16 June 2005, while assigned to recruiting duty, nonjudicial punishment (NJP) was imposed against the applicant for having sexual intercourse with a married woman who was not his wife. His punishment consisted of a forfeiture of $1,000.00. He did not appeal his punishment and the imposing commander directed that the DA Form 2627 be filed in the restricted portion of his OMPF.
5. The applicant was subsequently assigned to Fort Riley, Kansas and was promoted to the pay grade of E-6 on 1 April 2006.
6. In November 2008, the applicant applied to the DASEB to have the NJP removed from his OMPF and was advised by that board that he had to apply to the Army Board for Correction of Military Records (ABCMR).
7. Army Regulation 27-10 prescribes the guidelines for the filing of NJP. It states, in pertinent part, that the decision to file the original DA Form 2627 on the performance or restricted portion of the OMPF will be determined by the imposing commander at the time punishment is imposed. Personnel serving in the pay grade of E-4 or below, with less than 3 years of service will have the NJP filed in the local unit military justice files. Personnel serving in the pay grade of
E-4 with 3 or more years of service will have the NJP filed in the OMPF. The filing decision of the imposing commander is final and will be indicated in item 5 of the DA Form 2627.
8. Paragraph 3-37 of Army Regulation 27-10 provides the filing determination for the DA Form 2627 and associated documents. It provides, in pertinent part, that the restricted portion of the OMPF is that portion of the OMPF that contains information not normally viewed by career managers or selection boards.
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so. The NJP was properly filed in the restricted portion of his OMPF, as directed by the imposing commander, based on his being an E-5 and having served over 3 years of service at the time punishment was imposed. Furthermore, the filing in the restricted portion of his OMPF should have no effect on his consideration for promotion as that board would normally not have access to that portion of the applicant's OMPF.
3. While the Board understands the applicants concerns, the Army has an interest in maintaining such documents, and the applicant has not shown sufficient reasons why it should not remain a matter of record, even after considering his entire record.
4. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X_____ ___X_____ ___X_____ 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.
_________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.
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