IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20090021763 


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 that a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) dated 11 May 1976 be relocated from the performance section of his Official Military Personnel File (OMPF) to the restricted section of his OMPF.

2.  The applicant states that he received nonjudicial punishment (NJP) in May 1976 during his advanced individual training (AIT).  He contends that this NJP should have been placed in the restricted section at the time he left AIT.  He came back on active duty in 2007.  It has been over 33 years since he received this NJP and it may still be hurting his chance for promotion to master sergeant, pay grade E-8.

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving as an Active Guard Reserve (AGR) in the rank of sergeant first class, pay grade E-7.

2.  On 5 February 1976, the applicant enlisted in the Regular Army.

3.  On 11 May 1976, the applicant, then a private, pay grade E-2, accepted NJP for failing to go to his appointed place of duty at the time prescribed.  The punishment included a forfeiture of $93.00 pay per month for 1 month (suspended) and 14 days extra duty.

4.  The applicant remained on active duty until 29 June 1992.  During this period of service he had reenlisted three times and was promoted through the ranks to sergeant first class, pay grade E-7.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement).

5.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 ending on 29 June 1992 shows his awards as the Army Commendation Medal, Army Achievement Medal with Oak Leaf Cluster, five Army Good Conduct Medals, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon with Numeral 3, Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.

6.   On 14 September 1992, the applicant requested transfer to a troop program unit of the Selected Reserve.

7.  On 12 September 2005, the applicant was mobilized as a member of his Reserve unit.  He served with his unit in Iraq/Kuwait from 8 December 2005 to 
1 December 2006.  On 13 March 2007, he was released from active duty and transferred to his Reserve unit.

8.  On 4 September 2008, the U.S. Army Human Resources Command, St. Louis, Missouri, provided the applicant his 20-Year Letter notifying him of his eligibility for retired pay at age 60.

9.  Army Regulation 27-10 (Military Justice) effective 10 August 1987 provided that the original DA Form 2627 for Soldiers E-4 and below who have been in the Army less than 3 years as of the date punishment was imposed, would be filed locally in NJP files and destroyed at the end of 2 years or on the Soldier’s transfer from the unit, whichever occurs first.  Prior to this date, all DA Forms 2627 were filed permanently.  This filing change was not retroactive.  

10.  Army Regulation 27-10 currently provides that records of nonjudicial punishment imposed prior to 1 November 1982 and presently filed in either the performance or restricted section of the OMPF will remain so filed, subject to other applicable regulations. 

11.  There is no indication in the available records to show that he applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the record of NJP transferred to the restricted fiche of his OMPF.
12.  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 fiche or moved to another part of the fiche unless directed by one or more of the following: (1) The Army Board for Correction of Military Records (ABCMR); (2) The 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.  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 his NJP should be relocated to the restricted section of his OMPF.

2.  The evidence of record clearly shows that the applicant received NJP as a private, pay grade E-2, during his first year while still in training.

3.  The governing regulation, at the time, provided for the permanent filing of all NJP's.  In 1987, the regulation was changed to provide that NJP for Soldiers in pay grade E-4 and below who had been in the Army less than 3 years as of the date punishment was imposed, would be filed locally in NJP files and destroyed at the end of 2 years or on the Soldier’s transfer from the unit, whichever occurred first.  Currently, the regulation provides that records of nonjudicial punishment imposed prior to 1 November 1982 and presently filed in either the performance or restricted section of the OMPF will remain so filed, subject to other applicable regulations. 

4.  Based on the applicant's long record of service; promotion to sergeant first class, and receipt of several personal decorations, and as a matter of equity, his NJP should be moved to the restricted section of his OMPF.
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 moving the DA Form 2627 to the restricted section of his 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)                                         AR20090021763





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ABCMR Record of Proceedings (cont)                                         AR20090021763



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