BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20100012862 


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 26 May 2008, be removed from his Official Military Personnel File (OMPF). 

2.  The applicant states the Article 15 he received was in a suspended status and no actual Article 15 proceedings had taken place.  He served the 6-month probationary period exceptionally well and with great tenacity.  The filing of this Article 15 hinders career advancement and prevents him from becoming an Army recruiter.  The punishment specifically states "suspended status" and the second page he signed indicating he completed the 6-month probation is not present.  

3.  The applicant provides a copy of his Enlisted Record Brief, dated 16 April 2010; and a character reference letter, dated 1 March 2010, from his former first sergeant (1SG), in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant's records show he enlisted in the Regular Army on 31 January 2005 and executed a 6-year reenlistment on 24 May 2007.  He holds military occupational specialty 25U (Signal Support Systems Specialist) and the rank/grade of sergeant (SGT)/E-5.  

2.  His records also show he served in Iraq in support of Operation Iraqi Freedom from on or about September 2007 to December 2008.

3.  On 26 May 2008, while holding the rank/grade of SGT/E-5 and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on three different occasions, being disrespectful towards a superior noncommissioned officer (NCO) on two different occasions, disobeying a lawful order from a superior NCO, and being derelict in the performance of his duties on two different occasions.  His punishment consisted of a forfeiture of $561.00 pay and 14 days of extra duty (both suspended until 21 November 2008).  The imposing commander directed that the original DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The applicant elected not to appeal his punishment.

4.  A review of his OMPF reveals the DA Form 2627, dated 26 May 2008, is in fact filed in the restricted section of his OMPF.

5.  His records show that since the above incident, he received two NCO Evaluation Reports wherein he received an "among the best" and a "fully capable" rating by his raters and a superior overall performance and potential by his senior raters.  He was also awarded an Army Commendation Medal for meritorious service during his tour in Iraq. 

6.  He submitted a character reference letter, dated 1 March 2010, from his former 1SG who states that he recommends removal of the Article 15.  The 1SG also states, in effect, the Article 15 punishment was put in a suspended status to see if the applicant would be able to overcome his setbacks.  He adds that the applicant learned from his mistakes and performed well.

7.  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.

	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.

8.  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; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and 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. 

9.  Paragraph 7-2 of Army Regulation 600-37 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 section to the restricted section of the OMPF.  

10.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the DA Form 2627, dated 26 May 2008, should be removed from his OMPF.

2.  The evidence of record confirms the applicant, a SGT in a leadership position, violated the UCMJ and subsequently accepted NJP on 26 May 2008 for multiple infractions:  failing to go to his appointed place of duty at the time prescribed, being disrespectful towards his NCO, disobeying an order, and being derelict in the performance of his duties, on various dates.  The imposing commander directed that the Article 15 be filed in the restricted section of the applicant's OMPF.  The fact that his punishment was suspended does not mean the hearing never happened or that judgment was deferred. 

3.  He now believes the presence of this Article 15 on his OMPF will impact his chances for career progression.  Regardless of what his punishment was, the fact remains that he violated the UCMJ and accepted the NJP at a closed hearing.  The subject Article 15 is not for one incident; he clearly demonstrated a pattern of misconduct in that his indiscipline included several infractions on various dates.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the restricted section of his OMPF.

4.  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)                                         AR20100012862



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ABCMR Record of Proceedings (cont)                                         AR20100012862



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