BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007709 


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 the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 1 July 2005, be removed from the restricted section of his Official Military Personnel File (OMPF). 

2.  The applicant states the Article 15 he received has served its purpose.  He takes full responsibility for the actions for which he was punished and the presence of this Article 15 hinders his chances for promotion.

3.  The applicant provides the following documents:

* A letter of recommendation, dated 12 January 2010, from his current commander
* A copy of the DA Form 2627, dated 1 July 2005
* A copy of a second DA Form 2627, dated 17 June 2008
* Copies of his DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) from February 2002 to April 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) infantry staff sergeant (SSG)/E-6 who initially enlisted in the RA on 22 March 2000 and has served through several reenlistments in various staff and leadership positions within and outside continental United States.


2.  On 1 July 2005, while holding the rank/grade of SSG/E-6 and serving as a section leader with an infantry battalion in Korea, and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for unlawfully striking another Soldier on the face with a closed fist.  His punishment consisted of a reduction to sergeant (SGT)/E-5 (suspended), 30 days of extra duty (suspended), and 30 days of restriction.  The imposing commander directed the original DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The applicant elected not to appeal his punishment.

3.  A review of his OMPF reveals the DA Form 2627, dated 1 July 2005, is in fact filed in the restricted section of his OMPF.

4.  On 17 June 2008, again while holding the rank/grade of SSG/E-6 and serving as an assistant operations sergeant with an infantry battalion in Korea, and in a closed hearing, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from on or about 20 July 2007 to on or about 27 April 2008 and disobeying a lawful order from a superior commissioned officer.  His punishment consisted of a reduction to SGT/E-5, a forfeiture of $1,285.00 pay (suspended), 45 days of restriction and extra duty (suspended).  The imposing commander directed the original DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The applicant elected not to appeal his punishment 

5.  A review of his OMPF reveals the DA Form 2627, dated 17 June 2008, is in fact filed in the performance and restricted sections of his OMPF.

6.  His records show that since his first incident on 1 July 2005, he accomplished the following:

	a.  He received three NCOERs wherein he was rated mostly successful or excellent and among the best by his rater and received a successful overall performance and superior rating by his senior rater.

	b.  He completed Phase II of the Basic NCO Course.

	c.  He was awarded an Army Commendation Medal for meritorious achievement. 

7.  He submitted a letter of recommendation from his current unit commander who states that he supports the removal of the applicant's Article 15 from his OMPF.  He further describes his performance as exceptional and his dedication and tactical/technical knowledge as outstanding.  He adds that the applicant learned from his mistake and performed well.
8.  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 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:

	a.  Paragraph 3-6 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.  

	b.  Paragraph 3-37b(2) states 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 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.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states, in pertinent part, 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.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This document 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.

10.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides, in pertinent part, that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 1 July 2005, should be removed from his OMPF.

2.  The evidence of record confirms the applicant, a SSG in a leadership position, violated the UCMJ and subsequently accepted NJP on 1 May 2005 for striking a junior Soldier.  The imposing commander directed this Article 15 be filed in the restricted section of his OMPF.  He elected not to appeal his punishment.    

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted portion of the applicant's OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show that the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust.  

4.  He now believes the presence of this Article 15 on his OMPF will impact his chances for career progression.  However, the subject Article 15 is not an isolated incident.  He has clearly demonstrated a pattern of misconduct in that he again accepted NJP on 17 June 2008 for other infractions.  His argument that the Article 15 has served its intended purpose lacks merit.  If it had served its intended purpose, he would not have placed himself in a situation where he received another Article 15.  

5.  In view of the foregoing evidence, there is no evidence of error or injustice.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief in this case.  

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)                                         AR20100007709



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)