IN THE CASE OF:	  

		BOARD DATE:	       4 JUNE 2009

		DOCKET NUMBER:  AR20090002763 


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 DMAIL (Department of Military Affairs) Form 60-R (Record of Nonjudicial Punishment Proceedings), Illinois Army National Guard (ILARNG) from his Official Military Personnel File (OMPF).

2.  The applicant states that based on the expiration of the two-year disposition instructions stated on his DMAIL Form 60-R, the nonjudicial punishment should be removed from his records.

3.  The applicant provides a copy of a DA Form 4856 (Developmental Counseling Form), dated 22 July 2003; copies of six DA Forms 2823 (Sworn Statements), dated 20 July 2003; a copy of an undated self-authored statement; and a copy of an undated self-authored response to sworn statements, 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 records show he enlisted in the ILARNG on 2 November 1983.  He was trained in and held military occupational specialty (MOS) 68G (Aircraft Structural Repairer) and attained the rank of specialist (SPC)/E-4. 

3.  On 6 October 2003, while assigned to Company E, 106th Aviation, Chicago, IL, the applicant accepted nonjudicial punishment proceedings for failing to obey a lawful order of a superior noncommissioned officer (NCO), becoming argumentative, and using inappropriate and obscene language towards the same NCO, on 20 July 2003.  His punishment consisted of a reduction to private first class (PFC)/E-3. 

4.  On 21 April 2004, the applicant appealed his punishment.  Accordingly, the ILARNG Deputy Staff Judge Advocate (SJA) forwarded the appeal to the next higher authority in accordance with paragraph 3-7 of DMAIL Regulation 27-1 (ILARNG Military Justice).  However, on 29 April 2004, his appeal was denied.

5.  On 1 September 2004, DMA, ILARNG, published Orders 245-163, directing the applicant's discharge from the ARNG and reassignment to the U.S. Army Reserve Control Group (Reinforcement) effective 3 September 2004 with an under honorable conditions (general) character of service.

6.  On 10 September 2004, by memorandum, the ILARNG Deputy SJA indicated that the original record of nonjudicial punishment will be filed in the member's military personnel records jacket (MPRJ) for two years, after which time it will be destroyed unless the member has received additional nonjudicial punishment action.  In that case, the record would be destroyed at the end of two years from the latest date of imposition of punishment.  He also indicated that a copy would be filed in the member's State vault file permanently and a copy would be retained by the ILARNG legal office for one year, after which it would be destroyed.

7.  The DMAIL Form 60-R and allied documents (counseling forms, statements, sworn statements, and Deputy SJA memorandums are currently filed in the performance portion of the applicant's OMPF.





8.  DMAIL Regulation 27-1 prescribes the requirements, policies, limitations, and procedures for the imposition of nonjudicial punishment pursuant to the Governor's authority to make rules and regulations for the discipline of the militia (Illinois Compiled Statutes, Chapter 20, Paragraph 1805/9).  It states that a commander should use non-punitive disciplinary tools (e.g., counseling and reprimands) to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment.  However, use of nonjudicial punishment is proper in all misconduct cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  The term "minor offenses" means those offenses as are made punishable by the military laws of the United States and the laws of the State of Illinois.  Furthermore, when the use of nonjudicial punishment is appropriate, these procedures will be used in lieu of the administrative reduction procedures under applicable regulations.

9.  Chapter 6 of DMAIL Regulation 27-1 states that all nonjudicial punishment actions, including notification, election of rights, imposition of punishment, appeal, SJA review, and action on appeal, will be recorded on DMAIL Form     60-R.  After the member indicates in block 8 that he does not appeal, or after completion of block 11 if the member appeals, a copy of the DMAIL Form 60-R will be given to the member.  The original DMAIL Form 60-R, with all allied documents attached, will then be mailed to the Office of the Adjutant General, ATTN: DMAIL-JA, 1301 N. MacArthur Blvd., Springfield, IL 62702-2399, where it will be reviewed for legal sufficiency.  If legally insufficient, DMAIL-JA will return the documents through command channels for correction.  If legally sufficient, DMAIL-JA will make distribution as indicated below:

	a.  for ARNG members, the original DMAIL Form 60-R, with all original allied documents attached, will be forwarded for filing in the member's Military Personnel Records Jacket (MPRJ).  These originals will be destroyed by the custodian of the file at the end of two years from the date of imposition of punishment unless the member has received an additional nonjudicial punishment in the interim.  In such case, both nonjudicial punishment records will be retained in the MPRJ and will be destroyed at the end of two years from the latest date of imposition of punishment;

	b.  one copy, with all allied documents attached, will be filed at DMAIL-JA for one year from the date punishment was imposed, after which it will be destroyed; 

	c.  one copy will be permanently filed in the member's vault file (ARNG); 



	d.  if the punishment affects the member's pay (i.e., unsuspended reduction in grade, or forfeiture of pay), two copies of the DMAIL Form 60-R will be sent to the appropriate ARNG office which processes that member's military pay records; and 

	e.  if the punishment includes an unsuspended reduction in grade, one copy of the DMAIL Form 60-R will be sent to the appropriate reduction authority to process the reduction orders.

10.  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.  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 selected agencies such as the Army Board for Correction of Military Records (ABCMR).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the record of nonjudicial punishment should be removed from his OMPF.

2.  The evidence of record shows that the applicant accepted nonjudicial punishment on 6 October 2003.  The original DMAIL Form 60-R, with all allied documents attached, was forwarded to the servicing SJA office to be reviewed for legal sufficiency.  The Deputy SJA determined that the record was legally sufficient and determined that the original DMAIL Form 60-R, with all original allied documents, would be filed in the applicant's local file.

3.  It is unclear why the record of nonjudicial punishment, with allied documents, is filed in the applicant's OMPF.  It appears that the record is erroneously filed in his OMPF and should therefore be completely removed.

BOARD VOTE:

___x_____  ___x_____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State National Guard and Department of the Army records of the individual concerned be corrected by removing the DMAIL Form 60-R and all allied documents from the applicant's OMPF.




      _______ _   __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)                                         AR20090002763



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ABCMR Record of Proceedings (cont)                                         AR20090002763



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