IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090021275 


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, reconsideration of an earlier request that a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 21 May 1999 be removed from his official military personnel file (OMPF).  

2.  The applicant states:

* The Article 15 should  have been only filed locally and not on his performance record
* He was an E-4 at the time of the incident
* He has been serving as a model Soldier since the incident

3.  The applicant provides no documentary evidence in support of his request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100007557, on 2 March 2010.

2.  The applicant enlisted in the Regular Army on 22 September 1992 and has remained on active duty through continuous reenlistments.  He was promoted to sergeant on 1 April 1999.  
3.  A DA Form 2627, dated 21 May 1999, shows that nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty on 25 March 1999.  His punishment consisted of extra duty.  The issuing commander directed that the original DA Form 2627 be filed in the performance section of the applicant’s OMPF.  The applicant elected not to appeal the Article 15.  

4.  The applicant was promoted to staff sergeant on 1 December 2004.

5.  On 13 October 2009, the applicant submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) for removal of the Article 15.  On 
8 December 2009, the DASEB informed the applicant that the regulation precluded that board from removing records of nonjudicial punishment from an individual's OMPF and that the authority rested with the ABCMR.  Accordingly, the DASEB forwarded the applicant's packet to the ABCMR for review and further action.  

6.  On 2 March 2010, the ABCMR granted partial relief by transferring the DA Form 2627 in question from the performance section to the restricted section of the applicant's OMPF based on it having served its intended purpose. 

7.  A review of the applicant's restricted section of his OMPF revealed a copy of the DA Form 2627 in question.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), currently in effect, prescribes the policies governing the OMPF, the Military Personnel Records Jacket (MPRJ), the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that a DA Form 2627 will be filed in the performance or restricted section of the OMPF as directed by the issuing commander (item 5 on DA Form 2627).  Allied documents accompanying the Article 15 will be filed in the restricted section.  The regulation also states for Article 15s issued on or after 25 January 1990, the DA Form 2627 for Soldiers in the grades of specialist/corporal or below will be filed only in local nonjudicial punishment files.  The DA Form 2627 will not be filed in the MPRJ or the OMPF of these Soldiers.   

9.  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.
10.  Paragraph 7-2 of the unfavorable information regulation 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.

11.  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 on the performance portion of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  

   a.  Paragraph 3-37b states, in pertinent part, that the original DA Form 2627 for Soldiers in the grades of specialist or corporal and below (prior to punishment) 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, whichever occurs first.  

   b.  Paragraph 3-37b(a) further states, in pertinent part, that for Soldiers in the ranks of sergeant 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 on the performance or restricted portion of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final subject to review by superior authority.

   c.  Paragraph 3-43 of the military justice regulation contains guidance on the transfer or removal of records of nonjudicial punishment (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 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.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the Article 15 in question should have only been filed locally because he was an E-4 on 25 March 1999.  

2.  Although the applicant was an E-4 on 25 March 1999 (date of his misconduct), he held the rank of sergeant/E-5 when the Article 15 was imposed against him on 21 May 1999.  The governing regulation states only DA Forms 2627 for Soldiers in the grades of E-4 and below (prior to punishment) will be filed locally in unit nonjudicial punishment or unit personnel files.  

3.  There is no evidence the DA Form 2627 was improperly imposed.  The imposing commander directed the DA Form 2627 be filed in the performance section of the applicant's OMPF.  Therefore, in accordance with the governing regulation, the DA Form 2627 was properly filed in his performance section of his OMPF.  

4.  On 2 March 2010, the ABCMR granted partial relief by transferring the DA Form 2627 in question from the performance section to the restricted section of the applicant's OMPF based on it having served its intended purpose.

5.  Based on the foregoing, there is no basis for granting the applicant's request that the DA Form 2627 be removed from 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 to amend the decision of the ABCMR set forth in Docket Number AR20100007557, dated 2 March 2010.



      _______ _   _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)                                         AR20090021275





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021275



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1