IN THE CASE OF:	

		BOARD DATE:	01 October 2009  

		DOCKET NUMBER:  AR20090009391 


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 a DA Form 2627 [Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)], dated 29 July 1987, from his Official Military Personnel File (OMPF).  

2.  The applicant states that the Article 15 was received over 20 years ago while he was in the Regular Army and when his rank was that of a specialist four (SP4)/E-4.  This Article 15 should never have been filed in his OMPF and should have been destroyed once he left the unit.  He has since been in the U.S. Army Reserve (USAR) and now in the Active Guard Reserve (AGR) program.

3.  The applicant provides a copy of DA Form 2627, dated 29 July 1987, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he initially enlisted in the Regular Army (RA) for a period of 3 years on 31 October 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was assigned to Headquarters Company, 3rd Battalion, 505th Parachute Infantry Regiment (PIR), Fort Bragg, NC.  

2.  On 29 July 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for, on or about 17 July 1987, without authority, failing to go at the time prescribed to his appointed place of duty (accountability formation).  His punishment consisted of reduction to private first class (PFC)/E-3 (suspended until 28 August 1987), and 14 days of extra duty.  The imposing commander directed this Article 15 be filed in the restricted section of the applicant's OMPF.  Furthermore, the applicant elected not to appeal his punishment.

3.  The applicant's records further show that he also executed two 4-year reenlistments in the RA on 10 August 1988 and 15 January 1992, a 2-year reenlistment on 15 June 1996, and a 3-year reenlistment on 12 February 1998.  He was honorably discharged on 1 March 1998 under the Special Separation Benefit early release program.  

4.  Prior to his release from the RA, the applicant executed a 3-year enlistment in the USAR.  He also executed an indefinite reenlistment in the USAR on 16 April 2004 and attained the rank/grade of sergeant first class/E-7.  He is currently in the AGR program assigned to Fort Lewis, WA.

5.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF.  It states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF.  It also provides provisions that allow the transfer of a DA Form 2627 from the performance portion to the restricted portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.  It further stipulates that appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.  Where the OMPF is electronic, the restricted section and the performance section mean the restricted section and the performance section of the Personnel Electronic Management System (PERMS).

6.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  The version current at the time the applicant received his NJP required retention of the original DA Form 2627 in the Soldier's OMPF.  This rule changed 9 months after the applicant received his NJP.  On 18 March 1988, Army Regulation 27-10, at paragraph 3-37(b) of the regulation, states, in pertinent part, that for Soldiers E-4 and below who have been in the Army less than three years as of the date punishment is imposed, the original (DA Form 2627) will be filed locally in nonjudicial punishment files.  Such locally filed original will be destroyed at the end of two years from the date off imposition of punishment or on the Soldier's transfer from the unit, whichever occurs first.  For all other Soldiers, the original will be sent to the appropriate custodian for filing in the OMPF.  For those records where punishment is imposed on or after 1 November 1982, the decision to file the DA Form 2627 on the performance section or the restriction section 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 indicate in item 5 of the DA Form 2627.

DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and may not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

2.  The evidence of record confirms the Article 15 in question is filed in the restricted section of the applicant's OMPF.  As such, it is not viewed by personnel managers when making normal personnel management decisions and it is not included in promotion files reviewed by senior enlisted promotion board members.  As a result, there is no indication that the applicant may suffer an injustice due to this document being filed in the restricted section of his OMPF.

3.  Nevertheless, the applicant was an E-4 with 2-years time in service at the time punishment was imposed.  He has had no recurring incidents of indiscipline since his unfortunate incident in July 1987, 22 years ago.  He has shown commitment to the Army as evidenced by his multiple reenlistments in the RA, advancement to SFC/E-7, and entry into the USAR and the AGR program.  There is no harm to the Army or to the Soldier if this Article 15 is removed from his OMPF.  Therefore, the applicant is granted relief as a matter of compassion. 

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 Department of the Army records of the individual concerned be corrected by removing the DA Form 2627, dated 27 July 1987 from the applicant's 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)                                         AR20090009391





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ABCMR Record of Proceedings (cont)                                         AR20090009391



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