IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20090000128 


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, that his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be removed from the restricted portion of his official military personnel file (OMPF).  

2.  The applicant states, in effect, that the DA Form 2627 was not properly filed in his OMPF in accordance with the rules for distribution and filing under Army Regulation 27-10 (Military Justice).  Paragraph 3-37a states that the original DA Form 2627 will include all allied documents, all written statements, and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  His DA Form 2627 was filed without any of the written statements and other evidence that was considered.  Block 11 (Allied Documents and/or Comments) of the DA Form 2627 shows there should be six documents filed with the record:  two counseling statements on DA Forms 4856 (Developmental Counseling Form), three sworn statements on DA Forms 2823 (Sworn Statement), and one set of urine analysis paperwork.  None of those documents are present in his OMPF. 

3.  In support of his application, the applicant provides a copy of a letter from President, Army Special Review Boards, Arlington, Virginia. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Army Delayed Entry Program, in pay grade E-1, on 27 August 1996.  He enlisted in the Regular Army on 17 July 1997, for 4 years.  He was promoted to pay grade E-6 on 1 September 2005.  

2.  On 26 January 2006, the applicant accepted punishment under Article 15, UCMJ for dereliction in the performance of his duties on 27 October 2005, wherein he willfully failed to assign a noncommissioned officer as an observer at a unit urinalysis as it was his duty to do.  His punishment included a forfeiture of $626.00 pay and 14 days of extra duty and restriction (all suspended, to be automatically remitted if not vacated before 26 March 2006).  He did not appeal the punishment.  The applicant's commander directed the DA Form 2627 to be filed in the restricted portion of his OMPF.

3.  In a letter, dated 24 November 2008, the Army Special Review Boards, Arlington, advised the applicant that his request for removal of the DA Form 2627 from his OMPF was being returned without action by the Department of the Army Suitability Evaluation Board (DASEB) because his request did not fall under the jurisdiction of the DASEB.  The applicant was advised to apply to the Army Board for Correction of Military Records (ABCMR).  

4.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states that nonjudicial punishment is imposed to correct misconduct, as a result of intentional disregard of or failure to comply with prescribed standards of military conduct, in violation of the UCMJ.  Nonjudicial punishment may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  

5.  Army Regulation 27-10, paragraph 3-37g specifies that allied documents will be transmitted for administrative convenience with the original DA Form 2627 for filing on the restricted portion of the OMPF.  Paragraph 3-43 contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF.  It states, in pertinent part, that application for removal of a DA Form 2627 from a Soldier's OMPF based on an error or injustice will be made to the ABCMR.  It further states that there must be compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

6.  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 the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the removal of a DA Form 2627 which was properly filed in the restricted portion of his OMPF.  

2.  The evidence shows the applicant was administered nonjudicial punishment for dereliction in the performance of his duties on 27 October 2005.  At the time the nonjudicial punishment was imposed, the applicant did not appeal the punishment.

3.  The applicant has not provided convincing evidence that the DA Form 2627 is untrue or unjust, in whole, or in part, to support his request for removal from his OMPF.  By regulation, there must be compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record.  Absent any evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removing the document in question from the applicant’s OMPF.  

4.  The applicant's contention that the DA Form 2627 was filed without any of the allied documents has been considered.  However, there are also no provisions for the removal of a DA Form 2627 from the restricted portion of an OMPF when the allied documents were not filed with the original or copies of the DA Form 2627.  Therefore, the non-transmittal of those documents with a DA Form 2627 cannot be used as a basis for the removal of a DA Form 2627 from the OMPF.

5.  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.  

6.  In view of the foregoing, there is no basis for granting the applicant’s requests.

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.




      _________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)                                         AR20090000128



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ABCMR Record of Proceedings (cont)                                         AR20090000128


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