IN THE CASE OF:	 

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090014197 


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 permanent removal of the DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)), dated 11 May 2001, from his official military personnel file (OMPF).

2.  The applicant states, in effect, that it has been 8 years since the incident occurred and he assumed responsibility for his action.  He continues that the document has served its purpose in that he has learned from his past mistake.  The applicant contends that the continual presence of this document is hindering him from becoming the Soldier he is capable of being and thus prevents the Army from benefiting from his full potential.  The applicant concludes that his record and performance reports have been excellent since the incident occurred in February 2001.

3.  The applicant did not provide any documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 10 August 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 19K (M1 Armor Crewman).  The applicant executed several extensions and/or reenlistments in the Regular Army, served in various positions, and is currently serving in the rank of sergeant first class (SFC)/pay grade E-7.  He is currently assigned to Headquarters, 4th Cavalry Brigade, 1st Army Division East, Fort Knox, Kentucky.

2.  On 11 May 2001, while assigned as a staff sergeant (SSG)/pay grade E-5 to Headquarters and Headquarters Company, 1st Armored Division, in Bad Kreuznach, Germany, the applicant elected not to demand trial by court-martial and accepted nonjudicial punishment (NJP) at a closed hearing under the provisions of Article 15 of the UCMJ for violation of Article 111 of the UCMJ by physically controlling a passenger car while drunk on or about 2 February 2001.  His punishment consisted of a reduction to sergeant (SGT)/E-5 and a forfeiture of $965.00 pay.  The imposing commander directed this Article 15 be filed in the restricted section of the applicant's OMPF.

3.  On 11 May 2001, the applicant elected not to appeal the imposed punishment.

4.  Since the incident, the applicant received eight DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) containing favorable comments and recommendations from his rating chain regarding both his performance and his potential.

5.  The applicant was promoted from SGT to SSG effective 1 October 2002 and from SSG to SFC effective 1 June 2006.

6.  Army Special Review Boards, Arlington, Virginia, letter, dated 17 August 2009, shows the President of the Department of the Army Suitability Evaluation Board referred the applicant to the Army Board for Correction of Military Records to request removal of the Article 15 from his OMPF.

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides, in pertinent part, that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

8.  Paragraph 3-6 of Army Regulation 27-10 addresses the filing of an NJP and provides, in pertinent part, that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant (SGT) and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.

9.  Paragraph 3-18 of Army Regulation 27-10 contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates that the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, to request to be accompanied by a spokesperson, to request an open hearing, and to examine available evidence.

10.  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; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and 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.

11.  Paragraph 7-2 of Army Regulation 600-37 contains guidance on appeals for removal of OMPF entries.  It states that 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 intended purpose of the document has been served or that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  The regulation also provides provisions that allow the transfer of a DA Form 2627 from the performance portion to the restricted section of the OMPF.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) establishes policies and provisions for the maintenance and release of information in the OMPF.  This regulation states that only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed in item 5 of the DA Form 2627.

13.  Army Regulation 600-8-104 states that disciplinary information filed on the restricted fiche will be provided to command sergeant major (CSM)/sergeant major (SGM)/pay grade E-9 and SGM academy selection boards.  For the purpose of this provision, disciplinary information includes court-martial orders, records of nonjudicial punishment, and punitive or administrative letters of reprimand, censure, or admonition.  There are no provisions to routinely provide information from the restricted fiche to other selection boards although a board president may request permission from the Office of the Deputy Chief of Staff for Personnel to review specific restricted information when he or she believes the information is crucial to the selection process.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 11 May 2001, should be removed from his OMPF.

2.  The purpose of maintaining the OMPF is to protect the interests of the 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 will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

3.  The evidence of record confirms that the applicant elected not to demand a trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing with his commander.  He had the opportunity to decline the Article 15 at any time prior to the imposition of punishment being announced and to demand trial by court-martial.  His election to accept the Article 15 was simply a choice.

4.  The evidence of record further shows that this DA Form 2627 is properly filed in the restricted section of the applicant's OMPF as directed by the imposing commander.  By regulation, in order to remove a document from the restricted section of the OMPF, there must be clear and convincing evidence showing that the intended purpose of the document has been served or that the document is untrue or unjust thereby warranting its removal from the OMPF.

5.  The applicant's argument that the Article 15 has served its intended purpose lacks merit.  The applicant is currently an SFC/E-7.  Disciplinary information from his restricted fiche will not be routinely provided to selection boards until the time he is considered for promotion to SGM/E-9 or attendance at the Sergeants Major Academy.  His desire to have an 8-year old Article 15 removed from his files based upon his subsequent service record is understandable.  However, promotion and school selection board members are experienced and capable of distinguishing between one youthful indiscretion and a "problem" record of service.  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 the above and the fact the Article 15 was properly filed in his OMPF, it would not be equitable to remove the Article 15 from the applicant's restricted fiche.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.


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)                                         AR20090014197



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ABCMR Record of Proceedings (cont)                                         AR20090014197



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