IN THE CASE OF:
BOARD DATE: 18 February 2010
DOCKET NUMBER: AR20090016828
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 a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be expunged from the restricted section of his official military personnel file (OMPF).
2. The applicant essentially states that per Army Regulation 27-10 (Military Justice), only Soldiers holding the rank of sergeant and above will have a DA Form 2627 filed in the performance or restricted sections of their OMPF. He also states that he was in the pay grade of E-2 at the time of his Article 15 proceedings and, as such, his Article 15 should not have been filed in either section of his OMPF. He further contends that Army Regulation 27-10 states that Article 15 proceedings for Soldiers in pay grade E-4 and below will be destroyed after 2 years or upon permanent change of station.
3. The applicant provides his DA Form 2627 in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant is currently a staff sergeant in the U.S. Army Reserve (USAR) serving on active duty orders until 20 August 2010 for completion of medical care and treatment. Prior to enlisting in the USAR on 26 September 2006, he served in the Regular Army from 16 July 1986 to 14 July 1989 and subsequently served in the Army National Guard. The applicant had his last name legally changed from Brown to Bruno in 2002.
2. The restricted section of the applicant's OMPF contains a DA Form 2627 which shows that he accepted nonjudicial punishment under Article 15 of the UCMJ on 10 June 1987 for absenting himself without authority from his place of duty on or about 2 June 1987. Item 5 of this document shows that the commanding officer who imposed the punishment directed that the original of this document be filed in the restricted section of the applicant's OMPF.
3. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Paragraph 3-37b of the current version of this regulation, effective 16 December 2005, states that for Soldiers in the ranks of specialist (SPC) or corporal (CPL) and below (prior to punishment), the original DA Form 2627 will be filed locally in unit nonjudicial punishment or unit personnel files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority (GCMCA). Paragraph 3-41 also provides that records of nonjudicial punishment previously filed in either the performance or restricted section will remain so filed.
4. Army Regulation 600-8-104 (Military Personnel (MILPER) Information Management/Records), table 2-1 (Composition of the OMPF) provides, in pertinent part, that for Article 15's issued on or after 25 January 1990, the record of proceedings for Soldiers in the ranks of SPC/CPL or below will be filed only in local nonjudicial punishment files. The DA Form 2627 will not be filed in the military personnel records jacket (MPRJ) or OMPF of these Soldiers. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another GCMCA. It also states that for Article 15's issued on or after 1 November 1982, the DA Form 2627 will be filed in the performance or restricted fiche of the OMPF as directed by item 5 of the DA Form 2627.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that a DA Form 2627 should be expunged from the restricted section of his OMPF.
2. While the regulatory guidance prohibiting the filing of DA Forms 2627 in the MPRJ or OMPF of Soldiers in the ranks of SPC/CPL and below became effective 25 January 1990, the regulatory guidance in effect at the time of the applicant's Article 15 proceedings directed that the DA Form 2627 would be filed as directed by the commanding officer imposing the punishment. As the applicant's commanding officer directed that his DA Form 2627 be filed in the restricted section of his OMPF, it was properly and appropriately filed in accordance with regulations in effect at the time. As a result, there is no basis for expunging the applicant's DA Form 2627 from the restricted section of his OMPF.
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) AR20090016828
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ABCMR Record of Proceedings (cont) AR20090016828
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