DOCKET NUMBER:  AR20090007232 


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 the removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) dated  18 November 1998 from his Official Military Personnel File (OMPF).

2.  The applicant states that the nonjudicial punishment (NJP) has served its purpose over the last 11 years.  He has learned the lesson and the punishment produced the desired effect.  The actions detailed in the NJP no longer reflect the Soldier that he is today.  He has been non-selected for promotion to sergeant first class five times.

3.  The applicant provides, in support of his application, nine memoranda/ letters of support, including one written by the commander who administered the NJP in 1998.  

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a staff sergeant, pay grade 
E-6, serving on active duty in the Regular Army.

2.  On 19 June 1994, the applicant enlisted in the Regular Army for a period of 
6 years.  He completed his initial training and was awarded military occupational specialty 68F (Aircraft Electrical Specialist).

3.  On 1 April 1996, the applicant was promoted to sergeant, pay grade E-5.

4.  On 18 November 1998, the applicant accepted NJP for violation of Article 93 (maltreatment of subordinate) by telling her she had nice breasts.  The punishment included a forfeiture of $364.00 pay per month for 1 month (suspended), and 14 days of extra duty.  The applicant did not appeal the punishment.  The commander directed that the DA Form 2627 be filed in the restricted section of the applicant's OMPF.   

5.  On 30 September 2008, the applicant's former commander who imposed the subject NJP wrote a memorandum wherein he stated that the NJP was intended to send a message to the applicant as well as the other Soldiers of the unit that the applicant's actions would not be tolerated.  The former commander stated that it appeared the applicant had dedicated the last 10 years of his life in service to his country, deploying three times and constantly attempting to better himself personally and professionally.  The former commander believed that the NJP had served its purpose and that leaving it in his OMPF would only serve to deny him promotion and/or schooling.  

6.  On 26 March 2009, the applicant's squadron commander, at the time, wrote a memorandum in support of removing the NJP from the applicant's OMPF.  The squadron commander stated that the applicant has served with honor for more than 10 years since his infraction.  The applicant's honor, loyalty and integrity are beyond reproach.  The squadron commander stated that he was proud to have the applicant as part of his team and that the Army would be better served with the applicant joining the senior enlisted ranks as a sergeant first class.  

7.  On 26 March 2009, the applicant's troop commander, at the time, wrote a memorandum in support of removing the NJP from the applicant's OMPF.  The troop commander stated that it has been 10 years since the incident.  A careful examination of the applicant's flawless service records during that time shows that justice has been served and time has come to review the situation.  The applicant is performing at a level well above his current rank.  His honor, integrity and individual responsibility is of the highest caliber and truly is deserving of serving at even greater levels in the Army.

8.  The applicant has also provided six additional memoranda/letters of support essentially stating that the NJP has served its purpose and should be removed from his OMPF based on his subsequent high quality service.

9.  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 fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627.  
10.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides, in pertinent part, that all personnel information recorded under the authority of this regulation is the property of the United States Government.  Once recorded, it will not be removed except as provided by law or this regulation. Types of authorized military personnel files are the OMPF, Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), and the Classified Personnel Record (CPR). Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from a section or moved to another part of the section unless directed by one or more of the following: (1) The Army Board for Correction of Military Records (ABCMR); (2) The Department of the Army Suitability Evaluation Board (DASEB); (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, Human Resources Command (5) The OMPF custodian when documents have been improperly filed; (6) Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, Human Resources Command, St. Louis, Missouri ; (8) Chief, Appeals Branch, National Guard Personnel Center.   Documents designated for transfer from the performance or service section will be put on the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted section documents mistakenly filed on the performance or service section to the restricted section. Unless approved by the Deputy Chief of Staff, Personnel or by the Human Resources Command Promotions Branch, this action does not justify standby or special selection board consideration. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the NJP he received has served its purpose and that it should be removed so he can have a better chance for promotion.

2.  The evidence in this case suggests that NJP was properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.

3.  The evidence also suggests that he was afforded due process in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.  He accepted NJP in lieu of demanding trial by court-martial.

4.  The imposing commander directed that the NJP be filed in the applicant's restricted section of his OMPF.  The intent of the NJP was to punish unacceptable behavior.  The fact that the applicant has learned from the punishment and has made subsequent improvements in his duty performance is commendable.  However, this is not sufficient justification for removal of the NJP from his OMPF. 

5.  Furthermore, deleting the applicant's record of misconduct and thereby allowing him to compete on the same level playing field with Soldiers who have not blemished their service by misconduct, would be inequitable. 

6.  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.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20090007232





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ABCMR Record of Proceedings (cont)                                         AR20090007232



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