IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100014530


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 permanent removal of a DA Form 2627 (Record of Proceedings under Article 15 of the Uniform Code of Military Justice [UCMJ]), she received on 15 May 2001.

2.  The applicant states she has served honorably since 2001 with no incidents or adverse actions in the last 5 years.  She states she has deployed multiple times gaining knowledge and professionalism as a responsible noncommissioned officer (NCO) accomplishing all assigned missions.  She continues by saying she served her punishment (restriction for 45 days and extra duty for 30 days) and has learned from the error of her actions.  She strongly and respectfully requests removal of this derogatory information from her record.

3.  The applicant provides the following documents in support of her application:

	a.  a DA Form 2166-8 (NCO Evaluation Report) with a through date of February 2005;

	b.  a DA Form 2166-8 with a through date of 31 October 2006;

	c.  a DA Form 2166-8 with a through date of 31 October 2007;

	d.  a DA Form 2166-8 with a through date of 19 September 2008;

	e.  a DA Form 2166-8 with a through date of 19 September 2009;

	f.  a DA Form 2166-8 with a through date of 14 May 2010;

	g.  three separate memoranda, dated in 2009, recommending her for officer candidate school;

	h.  a memorandum, dated 29 September 2009, from her company commander acknowledging she had UCMJ actions in 2001 and 2005;

	i.  Permanent Order 267-01, dated 20 October 2005, announcing award of the Army Good Conduct Medal (2nd Award);

	j.  Permanent Order 356-02, dated 22 December 2005, announcing award of the Army Good Conduct Medal (3rd Award);

	k.  Permanent Order 224-03, dated 11 August 2008, announcing award of the Army Good Conduct Medal (4th Award); and

	l.  her Enlisted Record Brief, dated 14 April 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 August 1996.  She completed her initial entry training and was awarded military occupational specialty 25B (Information Systems Operator).  The applicant is currently on active duty in the Regular Army serving as a staff sergeant with a date of rank of 1 June 2006.

2.  On 14 March 2000, the applicant was promoted to the rank of sergeant/pay grade E-5.

3.  On 21 May 2001, as a sergeant the applicant accepted field-grade nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for assaulting a junior Soldier by pulling her hair and striking her in the eye with her knee.  Punishment was rendered and the imposing commander directed this Article 15 be filed in the restricted portion of the applicant's official military personnel file (OMPF).  The applicant did not appeal her punishment.

4.  The applicant received counseling from her unit first sergeant on 1 August 2005 which is documented on a DA Form 4856 (Developmental Counseling Form):

	a.  for failure to obey a lawful order or regulation on 28 July 2005 by not getting off her cell phone when given an order by a senior NCO.  The applicant agreed with the counseling, remarking she reported for duty at 0605 hours to the gym.  She states she did get off her cell phone at approximately 0710 hours and entered the gym for physical fitness training.  She then reported to work at 0900 hours.

	b.  for failure to be at her appointed place of duty on 29 July 2005.  The applicant agreed with the counseling, remarking she was telling a Soldier to report back to the group compound when she realized she should have been at a meeting herself at the group headquarters at 1300 hours.  She stated she proceeded to the meeting, arriving late.

5.  For each offense, the first sergeant recommended punishment under the provisions of Article 15 of the UCMJ.

6.  On 11 August 2005, the applicant accepted company-grade NJP for failure to go her appointed place of duty on 29 July 2005 and disobeying a lawful order of a senior NCO by refusing to get off her cell phone on or about 1 August 2005.  The imposing commander directed this Article 15 be filed in the restricted portion of the applicant's OMPF.  However, as the applicant had a previous NJP filed in the restricted section of her OMPF, this second NJP was required to be filed in the performance section of the OMPF in accordance with Army Regulation 
27-10 (Military Justice).  The applicant did not appeal her punishment.

7.  The applicant provided six NCO evaluation reports for the period February 2005 through May 2010.  A review of these reports shows she consistently met or exceeded her performance objectives with each rater stating she was among the best NCO's.  Senior raters stated her overall performance was successful and her potential for promotion was superior.  As an exception, one rater stated the applicant "needs improvement" for failing to "set the example for her Soldiers on timeliness by being late numerous times" for a report with a through date of 31 October 2006.

8.  The applicant provided three memoranda recommending her for officer candidate school stating she had demonstrated her capabilities consistently during their professional associations with her.  From observations, she was tactically and technically proficient with the authors stating she was a bright and motivated professional NCO focusing on the mission.  In addition, one author stated the applicant always took care of her Soldiers before herself.

9.  In a separate memorandum, the applicant's current company commander acknowledged there were two records of NJP in the applicant's OMPF.  In addition, he acknowledged the applicant exceeded the maximum years of service for application to the officer candidate school.  In light of this knowledge, the company commander still recommended the applicant for officer candidate school.

10.  References:

	a.  Army Regulation 27-10 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.

	b.  Paragraph 3-6 of Army Regulation 27-10 addresses the filing of an NJP.  It provides for the imposing commander to determine whether to file a record of NJP in the performance or restricted section of a Soldier's OMPF.  The imposing commander makes this decision at the time of imposition of punishment.  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.  The imposing commander should consider the Soldier's age, grade, and total service.  The filing decision by the imposing commander is subject to review by superior authority.

	c.  Army Regulation 27-10 also provides the commander imposing NJP with clear guidance as to whether a DA Form 2627 should be filed on the performance section or the restricted section of the OMPF.  Offenses involving unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline, are normally filed in the performance section.  That regulation also specifies that for personnel in pay grade E-5 or higher, only one DA Form 2627 may be filed in their restricted section of the OMPF with second and subsequent NJP's required to be filed in their performance section.

	d.  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.

	e  Paragraph 7-2 of Army Regulation 600-37 contains guidance on appeals for removal of OMPF entries.  It states 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 NJP from the performance portion to the restricted section of the OMPF.  

	f.  Paragraph 2-3 of Army Regulation 600-8-104 (Military Personnel Information Management/Records) provides for the restricted section of the OMPF use 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 (i.e., for enlisted Soldiers, formerly designated as Headquarters, U.S. Army Enlisted Records and Evaluation Center) or the Department of the Army Headquarters 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 her NJP, dated 15 May 2001, should be permanently removed from her record.

2.  This Article 15 shows the applicant assaulted a Soldier junior to her and after considering all the facts and the applicant's overall service record, the imposing commander imposed punishment exercising his command authority by using judgment that was legally and morally appropriate for the admitted offenses.

3.  The applicant accepted this Article 15 and did not request trial by court-martial and she did not appeal the imposing commander's punishment at the time.  Assault is a serious offense.  Now as she prepares her application for officer 
candidate school, she realizes the NJP, while filed in her restricted portion of her OMPF, is derogatory information that could hinder her professional schooling and military advancement.

4.  As evidence, the applicant provided six NCO evaluation reports showing she met or exceeded her duty performance objectives for each rating period.  Her senior raters stated her performance was superior and strongly recommended her for promotion.  In addition, the memoranda of record submitted by members of her chain of command have been carefully considered.  While these memoranda show she is tactically and technically proficient and is strongly recommended for officer candidate school, they do not provide sufficient reasoning or compelling evidence to remove an Article 15 imposed 9 years earlier in 2001.

5.  While the applicant stated she has served honorably since 2001 without incidents or adverse action, her OMPF shows differently.  Her OMPF shows a second NJP and an NCOER with derogatory comments.  The evidence of record shows she received a second NJP on 11 August 2005 for failure to obey lawful orders of superiors.  This second NJP, by regulatory requirement, was filed in the performance section of her OMPF.  In addition, her rater stated the applicant needed to improve her work attendance timeliness on her NCOER with a through date of 31 October 2006.

6.  The applicant failed to show or submit evidence to show her first NJP served its intended purpose or that evidence exists which demonstrates an error or an injustice to such a degree as to justify removal of this NJP.  In fact, the applicant's repeated misconduct shows her first NJP, dated 21 May 2001, should remain a part of her permanent record and not be removed as she contends.

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)                                         AR20100014530



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ABCMR Record of Proceedings (cont)                                         AR20100014530



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