IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100007825 


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 the 8 September 2004 Article 15 filed in the performance section of his official military personnel file (OMPF) be transferred to the restricted section of his OMPF.

2.  The applicant states that the Article 15 unjustly affects his career since he has striven to maintain professionalism since then.  He continues that he has dedicated his time and effort for the military and will continue to do so.  The applicant states that he plans on pursuing a career in medicine once completing his degree.  He plans on making the rank of sergeant first class before he can transfer to be a medical officer.  The applicant further states he has had good noncommissioned officer evaluation reports (NCOER's) since then and he continually improves himself.  He has bounced back to show his peers and superiors alike that he is a leader. 

3.  The applicant provides:

* Enlisted Record Brief, prepared 9 January 2010
* six DA Forms 2166-8 (NCO Evaluation Report) for the periods:
* July 2004 through June 2005
* July 2005 through February 2006
* March 2006 through February 2007
* March 2007 through September 2007
* September 2007 through January 2008
* February 2009 through June 2009 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 July 1998.  He has continued to serve on active duty through a series of reenlistments.

2.  On 1 March 2004, the applicant was promoted to the rank of staff sergeant (SSG).

3.  On 8 September 2004, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for losing through neglect a 9-millimeter pistol while in Ramnjane, Kosovo.  The applicant did not demand trial by court-martial, he requested a closed hearing in the Article 15 proceedings, and he elected to present matters in person.

4.  After consideration of all matters presented in the closed hearing, the imposing commander decided that, beyond a reasonable doubt, the applicant had committed the offense.  He imposed the punishment of a reduction to pay grade E-5 (suspended, to be automatically remitted if not vacated before 8 March 2005), extra duty for 30 days, and 30 days of restriction.

5.  The imposing commander directed that the original DA Form 2627 be filed in the performance portion of the applicant's OMPF.  The applicant declined to appeal the punishment.  

6.  Apparently, the suspended reduction was vacated on an unknown date, because on 19 January 2006 the applicant was again promoted to SSG.

7.  On 19 July 2006, the applicant accepted NJP under Article 15, UCMJ for:

* being disrespectful towards a superior commissioned officer
* being disrespectful in language towards a superior noncommissioned officer (NCO)
* two specifications of disobeying a lawful order from a superior NCO

8.  The applicant did not demand trial by court-martial, he requested a closed hearing in the Article 15 proceedings, and elected to present matters in person.

9.  After consideration of all matters presented in the closed hearing, the imposing commander decided that, beyond a reasonable doubt, the applicant had committed the offenses.  He imposed the punishment of a reduction to pay grade E-5 and forfeiture of $1,186.00 pay.

10.  The imposing commander directed that the original DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The applicant declined to appeal the punishment.

11.  On 1 September 2008, the applicant was promoted back to SSG.

12.  He is currently serving on active duty in the rank of SSG.

13.  Army Regulation 27-10 (Military Justice), in pertinent part, provides the applicable policies for administration of nonjudicial punishment.  The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders whom 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; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on DA Form 2627.  The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a Soldier's record.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the ABCMR, the Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the U.S. Army Human Resources Command, the OMPF custodian when documents have been improperly filed, Human Resources Command as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the 4 September 2004 Article 15 filed in the performance section of his OMPF should be transferred to the restricted portion of his OMPF.  He believes that the Article 15 unjustly affects his career and since then he has striven to maintain professionalism.  The applicant provides insufficient evidence to support his contention that the Article 15 filed in the performance section of his OMPF unjustly affects his career.

2.  The applicant's records show his first Article 15 was placed in the performance section of his OMPF in September 2004.  He regained his rank of SSG in January 2006.  He received a second Article 15 in July 2006.  He was again reduced to SGT and the second Article 15 was placed in the restricted section of his OMPF.  The applicant persevered and again attained the rank of SSG.  

3.  However, the evidence of record further shows that the DA Form 2627 in question is properly filed in the applicant's performance section of his OMPF as directed by the imposing commander.  There is no evidence of record and he provides no evidence to show that keeping the DA Form 2627 in the performance section of his OMPF is unjust.  If it had served its intended purpose, he would not have placed himself in a situation where he received another Article 15.  

4.  Therefore, the DA Form 2627 is properly filed and should remain in the performance section of the applicant's 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)                                         AR20100007825



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100007825



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1