IN THE CASE OF:	  

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20100007557 


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 his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) dated 
13 May 1999, be removed from his official military personnel file (OMPF).

2.  The applicant states, in effect, that at the time of receipt of the Article 15 in question he held the rank of specialist/E-4.  Therefore, it should have been filed locally and not on the performance portion of his OMPF.  He further states that he has been serving as a model Soldier since the incident.

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

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant is currently serving as a staff sergeant/E-6 (SSG/E-6) in the Regular Army at Fort Gordon, Georgia.

3.  The applicant's record shows he was first promoted to sergeant (SGT)/E-5 on 1 April 1999.  

4.  On 13 May 1999, while serving as an SGT at Katterbach, Germany, the applicant was notified that his unit commander was considering whether he should be punished under Article 15 of the UCMJ for failure to go to his appointed place of duty, to wit 0600 hours alert sign-in, at the time prescribed on or about 25 March 1999.  

5.  On 21 May 1999, the applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by his unit commander at a closed hearing and that matters in his defense, mitigation would be presented in person. 

6.  On 21 May 1999, the applicant’s battalion commander, after having considered all matters presented in defense, mitigation, and/or extenuation at a closed hearing, imposed the punishment of 7 days extra duty on the applicant.  The company commander also directed that the DA Form 2627 be filed in the 
performance portion of the applicant's OMPF.  The applicant elected not to appeal the NJP.

7.  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 Article 15's 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.  

8.  The applicant's record shows he was promoted to SSG/E-6 on 1 December 2004, and his evaluation history since receiving the Article 15 includes several Noncommissioned Officer Evaluation Reports (NCOERs) that contain "Among the Best" evaluations from raters and senior raters.  

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, MCM.  It states, in pertinent part, that the decision whether to file a record of NJP 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 Record of Proceedings under Article 15, UCMJ on Soldiers in the grades of SPC or CPL and below (prior to punishment) will be filed locally in unit NJP 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), whichever occurs first.  

   b.  Paragraph 3-37b(a) further states, in pertinent part 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 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 NJP (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 Army Board for Correction of Military Records (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’s contention that the Article 15 in question should be removed from his OMPF was carefully considered.  However, by regulation, 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.  The regulation further provides for the original DA Form 2627 of Soldiers in the ranks of SGT and above to be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 on the P or R portion of the OMPF will be made by the imposing commander at the time punishment is imposed. 

2.  In this case, the record confirms the applicant held the rank of SGT when the Article 15 in question was imposed, and that the imposing commander, acting within his regulatory authority, directed the DA From 2627 in question be filed in the P portion of the applicant's OMPF.  Absent any evidence meeting the clear and compelling regulatory evidentiary standard for removal of a facially valid DA Form 2627 from the record, there is insufficient evidentiary basis to support granting the requested relief in this case.  

4.  However, the regulation does authorize the transfer of an Article 15 when it can be determined that the document has served its intended purpose.  The evidence of record in this case shows the applicant accepted responsibility for his actions.  It also shows that he has responded positively to the NJP imposed, as evidenced by his continued outstanding performance documented by his evaluation history. 

5.  Given the passage of time and the applicant’s continued value to the Army, it is concluded that the Article 15 in question has served its intended purpose.  As a result, it would be appropriate to transfer the Article 15 in question to the 
R portion of the OMPF.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  __X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the DA Form 2627 (Article 15) and all related documents from the performance portion to the restricted portion of his Official Military Personnel File based on it having served its intended purpose.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the Article 15 from the Official Military Personnel File. 




      _______ 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)                                         AR20100007557



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ABCMR Record of Proceedings (cont)                                         AR20100007557



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