BOARD DATE: 19 August 2010
DOCKET NUMBER: AR20100016512
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 removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) dated
6 April 2003 from his Official Military Personnel File (OMPF). Alternatively, he requests that the DA Form 2627 be moved to the restricted section of his OMPF.
2. The applicant states he mistakenly placed an incorrect unit name on an Army Emergency Relief (AER) loan application, resulting in his receiving the nonjudicial punishment (NJP).
3. The applicant provides no additional documentation in support of his application.
CONSIDERATION OF EVIDENCE:
1. At the time of his application, the applicant was a U.S. Army Reserve (USAR) master sergeant (MSG)/pay grade E-8, serving on an Active Guard Reserve (AGR) assignment.
2. On 1 March 2003, the applicant was promoted to MSG/E-8.
3. On 6 April 2003, the applicant accepted NJP for violation of Article 107 (False Official Statement) by signing an application for an AER loan wherein he had, with the intent to deceive, represented himself to be assigned to the 5115th USAR Garrison located at Fort Meade, MD. He was afforded the opportunity to
consult with counsel and to elect trial by court-martial in lieu of accepting NJP. He accepted NJP in lieu of demanding trial by court-martial. His punishment included a forfeiture of 7 days pay (suspended for 6 months) and 14 days of extra duty. The applicant did not appeal the punishment. The commander directed that the DA Form 2627 be filed in the performance section of the applicant's OMPF.
4. Army Regulation 27-10 (Military Justice) prescribes the guidelines for the filing of NJP actions. It states that the decision to file the original DA Form 2627 on the performance or restricted section of the OMPF will be determined by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is final and will be indicated in item 5 of the DA Form 2627.
5. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides that all personnel information recorded under the authority of this regulation is the property of the United States Government. Once recorded, it will not be removed except as provided by law or this regulation. Types of authorized military personnel files are the OMPF, Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), and the Classified Personnel Record (CPR). 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 one or more of the following:
* the Army Board for Correction of Military Records (ABCMR)
* the Department of the Army Suitability Evaluation Board (DASEB)
* Army appeal boards
* the Chief, Appeals and Corrections Branch, Human Resources Command
* the OMPF custodian when documents have been improperly filed
* the Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation
* the Chief, Appeals Branch, Human Resources Command, St. Louis, MO
* the Chief, Appeals Branch, National Guard Personnel Center.
Documents designated for transfer from the performance or service section will be put in the restricted section, if authorized. When discovered by the custodian or requested by the Soldier concerned, transfer restricted section documents mistakenly filed on the performance or service section to the restricted section. Unless approved by the Deputy Chief of Staff, Personnel or by the Human Resources Command Promotions Branch, this action does not justify standby or special selection board consideration.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the NJP he received should be removed from his OMPF, or in the alternative, moved to the restricted section of his OMPF.
2. The evidence in this case suggests that the NJP was properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.
3. The evidence also shows that he was afforded due process in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting the NJP. He chose to accept the NJP in lieu of demanding trial by court-martial.
4. The imposing commander directed that the NJP be filed in the applicant's performance section of his OMPF. There is no evidence of error or injustice. The applicant's contention that he simply made a mistake by entering the wrong unit name is insufficient justification for removal of the NJP from his OMPF. Neither is it justification for moving the NJP to the restricted section of his OMPF.
5. In view of the above, there is no basis for granting the applicant's requested relief.
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) AR20100016512
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