IN THE CASE OF:	  

		BOARD DATE:	    31 August 2010

		DOCKET NUMBER:  AR20100015076 


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, removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 
11 July 2003, from his Official Military Personnel File (OMPF).

2.  The applicant states the issuing commander did not intend for the DA Form 2627 to be filed in his OMPF.  He adds that item 5 (I direct the original DA Form 2627 to be filed in the [Performance Fiche] [Restricted Fiche] of the OMPF) is lined through and "N/A" is annotated.

3.  The applicant provides the following:

* A copy of a DA Form 2627
* A copy of an email transmission between the applicant and the administering officer, dated 7 December 2009
* A copy of his Enlisted Record Brief

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in Iraq in the rank of staff sergeant (SSG) when his application was submitted to this Board.

2.  On 11 July 2003, the applicant was administered punishment under the provisions of Article 15 of the UCMJ, for violating a lawful order by operating a privately owned vehicle on Fort Sill, Oklahoma during his suspension/revocation period.  On or about 25 May 2003, the applicant failed to obey the same order by driving through the Sheridan Gate on Fort Sill, which was a violation of Article 92 of the UCMJ.

3.  The imposed punishment for this violation of the UCMJ was reduction to specialist (SPC), a forfeiture of $789.00 pay for 2 months, extra duty for 45 days, and restriction to the limits of Fort Sill Oklahoma for 45 days (suspended until 
31 December 2003).  At the time the punishment was administered, it appears the imposing commander initially directed that the original DA Form 2627 be filed in the performance section of the applicant's OMPF, it is initialed, but the entry is lined through and "N/A" appears to be annotated.  The applicant did not appeal the punishment.

4.  In an email transmission between the applicant and the administering commander who is currently serving on active duty in the rank of colonel, the applicant requested clarification on his intent for the filing of the Article 15.  The COL stated, "I replied to Ms. [sic] D---- today, telling her my intent was to file this locally.  While I don't recall this specific incident, I'm quite certain I would not have wanted this filed in the performance fiche unless there were additional circumstances.  Driving with a revoked license deserves scolding, not death!" 

5.  A review of the applicant's OMPF shows the Article 15 is filled in the performance section and in the restricted section of the OMPF.

6.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to (a) authorize placement of unfavorable information about Army members in their individual official personnel files; (b) to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files; and (c) 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 their official personnel files. 

7.  Paragraph 7-2 of the above referenced regulation states that once a document has been directed for filing in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof 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 contains provisions for the transfer of a DA Form 2627 from the performance section to the restricted section of the OMPF; however, there are no provisions for the removal a DA Form 2627 from the OMPF (emphasis added).

8.  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 in the performance section of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed:  

   a.  The Military Justice regulation further stipulates that, with the exception of summarized proceedings, Article 15 proceedings are recorded on a DA Form 2627, which will be filed in either the performance or restricted section of the OMPF on those Soldiers in the rank of sergeant and above.  Local filing of these documents is authorized only for Soldiers in the rank of corporal/specialist and below.  

   b.  Paragraph 3-43 of this regulation contains guidance on the transfer or removal of records of the DA Form 2627 from the OMPF.  It states, in pertinent part, that application for removal of an Article 15 from a Soldier's OMPF based on error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further states 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 policy and procedures for maintenance of a Soldier's personal information.  The restricted section of a Soldier's OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of this information is strictly controlled and will not be released without written approval from the CG, PERSCOM [now the Commander, Human Resources Command]; the Commander, Army National Guard Personnel Center, or the HQDA selection board proponent:

   a.  Paragraph 2-2.b states the custodian for an active Army enlisted Soldier's OMPF is the Commander, Army Human Resources Command-Indianapolis [formerly the US Army Enlisted Records and Evaluation Center (USAEREC)], Fort Benjamin Harrison, Indiana.

   b.  Paragraph 2-4.a states that once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the section unless directed by, among other agencies, the ABCMR or the OMPF custodian when documents have been improperly filed.
   


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for removal of a DA Form 2627 from his OMPF was carefully considered.  The evidence shows the DA Form 2627 was erroneously filed in the applicant's performance section of the OMPF.  The officer administering the non-judicial punishment appears to have lined through the entry and "N/A" appears to be annotated which indicates the document would have been placed in the local file.  

2.  A copy of an email transmission shows the COL contacted the applicant and stated the intent was never to file the document on the applicant's OMPF.  The evidence of record confirms the applicant was administered a field grade level Article 15 which was documented on a DA Form 2627.  According to regulatory guidance and given the applicant’s rank at the time, this document had to be filed either in the performance or restricted section of the applicant’s OMPF.  Local filing was not an option.  

3.  The restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  Generally this section of the OMPF will not be considered unless a Soldier is competing for promotion to sergeant major/E-9.  The release of information from this section is strictly controlled and will not be released without written approval from the Commander, Human Resources Command, or the HQDA selection board proponent.  Therefore, it is concluded that the filing of the DA Form 2627 in this section of the OMPF is correct.  However, the copy which was also placed in the performance section of the OMPF appears to be in error.  As a matter of equity, it would be appropriate to remove the DA Form 2627 from the performance section of his 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 removing the DA Form 2627, dated 11 July 2003, from the performance section of his OMPF.

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 DA Form 2627, dated 11 July 2003, from the restricted section of the OMPF. 




      _______ _   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)                                         AR20100015076



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ABCMR Record of Proceedings (cont)                                         AR20100015076



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