IN THE CASE OF:	  

		BOARD DATE:	  9 April 2009

		DOCKET NUMBER:  AR20090003496 


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 Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 August 1984 and 14 May 1991, be removed from his official military personnel file (OMPF).

2.  The applicant states, in effect, that on 14 February 2008, the Department of the Army Suitability Evaluation Board (DASEB) approved the transfer of the above mentioned DA Forms 2627 to the restricted portion of his OMPF.  He states that he believes these DA Forms 2627 have served their purpose over the past 25 years.  He also states that be believes that their continued existence is hindering him from serving in a command sergeant major (CSM) position and preventing the Army from benefiting from their investment in him as a senior noncommissioned officer.  Therefore, he is now requesting that these DA Forms 2627 be removed from the restricted portion of his OMPF.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a sergeant major in the Regular Army at Fort Hood, Texas.  On 16 August 1984, while he was serving as a specialist (SPC) at Fort Benning, Georgia, the applicant was notified that his unit commander was considering whether he should be punished under Article 15 of the UCMJ for wrongful use of tetrahydrocannabinol [marijuana], a Schedule I controlled substance.  Subsequent to this notification, the applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by his unit commander at a closed hearing.
2.  On 20 August 1984, the applicant’s company commander, after having considered all matters presented in defense, mitigation, and/or extenuation at a closed hearing, imposed the following punishment on the applicant:  forfeiture of $125.00 (suspended for 90 days) and 14 days of extra duty and restriction (suspended for 90 days and to be automatically remitted if not vacated before 18 November 1984).  Subsequently, the applicant elected not to appeal punishment and the imposing commander directed the DA Form 2627 be filed in the restricted portion of the applicant's OMPF. 

3.  On 20 April 1991, while he was serving as a staff sergeant (SSG) at Fort Leonard Wood, Missouri, the applicant was notified that his battalion commander was considering whether he should be punished under Article 15 of the UCMJ for two specifications of wrongfully being cruel and oppressive toward and maltreating two male trainees by removing their protective masks and waving a burning tear gas canister less than a foot from their faces.  Subsequent to this notification, the applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by his battalion commander at a closed hearing.  

4.  On 1 May 1991, the applicant’s company commander, after having considered all matters presented in defense, mitigation, and/or extenuation at a closed hearing, imposed the following punishment on the applicant:  reduction to sergeant (SGT) and forfeiture of $400.00 for 2 months (suspended for 6 months). Subsequently, the applicant elected to appeal his punishment and submit additional matters.

5.  On 14 May 1991, the appellate authority, a colonel (brigade commander) after consideration of all matters presented in appeal, granted the applicant's appeal as follows:  reduction to SGT (suspended to be automatically remitted if not vacated before 14 August 1991).  The imposing commander directed the DA Form 2627 be filed in the performance portion of the OMPF.  

6.  On 10 December 2007, the applicant requested DASEB approval for either removal or transfer of his Article 15, dated 14 May 1991, to his restricted portion of his OMPF.

7.  On 14 February 2008, the DASEB, after careful consideration and based on intent served, voted to approve the applicant's appeal and transfer of the Article 15, dated 14 May 1991, and all related documents to the restricted portion of his OMPF.


8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

9.  Paragraph 7-2 of Army Regulation 600-37 contains guidance on appeals for removal of OMPF entries.  It states, in pertinent part, the burden of proof to support removal of a document filed in the OMPF rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  The regulation provides provisions that allow the transfer of a DA Form 2627 from the performance portion of the OMPF to the restricted portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial.  It states, in pertinent part, that the decision whether to file a record of Nonjudicial punishment (NJP) on the performance portion of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  

11.  Paragraph 3-43 of Army Regulation 27-10 contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states, in pertinent part, that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

12.  Army Regulation 600-8-104 prescribes the policies and procedures on filing documents in military personnel records.  In pertinent part, it states that Article 15s issued on or after 1 November 1982 and before 25 January 1990 will be filed on the performance or restricted fiche as directed by the DA Form 2627.  Article 15s issued after 25 January 1990 will be filed on the performance or restricted fiche, except for Soldiers E-4 or below, which will be filed only in local non-judicial punishment files.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the Article 15s in question are hindering him from serving in a CSM position and therefore should be removed from the restricted portion of his OMPF was carefully considered.  However, by regulation, there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.  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.

2.  The fact that he has been able to reenlist in the Army and be promoted in the noncommissioned officer ranks since the time the Article 15s in question were imposed clearly shows the applicant has corrected his deficiency and has continued with his career.  His desire to have the Article 15s in question  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 in an OMPF must be available to board members in order to equitably make their selection choice.  Given this fact and the fact the Article 15s in question were properly filed in the OMPF under the governing regulation in effect at the time they were imposed, it would not be equitable to remove these Article 15s from his record at this time.  

3.  The evidence of record confirms the applicant’s Article 15s were processed in accordance with the governing law and regulation in effect at the time they were imposed and that his rights were fully protected throughout these processes.  The DASEB has recently transferred them to his restricted fiche.  As a result, there is not a clear and compelling evidentiary basis to support removal of these documents from the OMPF.  

4.  The applicant's contention that the duplicate Article 15, dated 20 August 1984, should also be removed from his OMPF was also carefully considered and found to have merit.  The evidence of record confirms that there are two 20 August 1984 DA Forms 2627 on file in the applicant's record and clearly a duplicate copy of the same record of NJP was erroneously filed in the OMPF.  Therefore, as a matter of equity and to eliminate the possibility that officials reviewing the record for promotion or a nominative assignment do not mistakenly believe these documents represent separate Article 15 actions, it would be appropriate to remove the duplicate Article 15 at this time.


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 the duplicate DA Form 2627, dated 20 August 1984, contained in the restricted portion of the applicant's OMPF be removed.

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 removal of the DA Forms 2627, dated 20 August 1984 and 14 May 1991, from the restricted portion of 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)                                         AR20090003496



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003496



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1