IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100021312 


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 correction of his military records by removing a DA Form 2627 (Record of Proceeding under Article 15, Uniform Code of Military Justice) from the restricted section of his official military personnel file (OMPF).

2.  The applicant states the record of nonjudicial punishment (NJP) has served its purpose.  He desires the Article 15 be removed because it would be in the best interest of the Army and retention in his OMPF may deny him further promotion.  It has been 6 years since his former commander imposed the NJP.  During this time he has led platoons for 3 years, including a platoon in Afghanistan; commanded an infantry company in Iraq; and received numerous awards and evaluations ranking him among the best in his brigade.

3.  The applicant provides copies of the subject Article 15, three DA Forms 67-9 (Officer Evaluation Report (OER)), four training certificates and diplomas, an achievement certificate showing award of the German Armed Forces Troop Duty Proficiency Badge, an award certificate for the Combat Infantryman Badge, a Bronze Star Medal Certificate, a Meritorious Service Medal Certificate, an Army Commendation Medal Certificate, and a DA Form 4037 (Officer Record Brief).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time of his application, the applicant was serving in the Regular Army as an infantry captain/pay grade O-3.

3.  On 20 December 2003, the applicant was appointed as a second lieutenant in the U.S. Army Reserve.  He was appointed in the Regular Army on or about 31 January 2004.

4.  On 2 November 2004, the applicant accepted NJP for violation of:

	a.  Article 89 (Disrespect Toward a Superior Commissioned Officer) by being disrespectful toward his superior commissioned officer by words, tone, conduct, and deportment;

	b.  Article 107 (False Official Statement) by making several official statements and a sworn written official statement, all with the intent to deceive; and

	c.  Article 133 (Conduct Unbecoming an Officer) by disgracing the Armed Forces through words, tone, and deportment.

5.  The applicant 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 $1132.00 pay per month for 1 month.  The applicant did not appeal the NJP.  The commander directed that the DA Form 2627 be filed in the restricted section of the applicant's OMPF.

6.  On 31 July 2005, the applicant was promoted to first lieutenant/pay 
grade O-2.  He was subsequently promoted to captain/pay grade O-3 on 1 March 2007.

7.  The applicant's three OER's covering the period 30 August 2006 through 27 May 2008 show he was consistently rated "Best Qualified" in his performance of duty as a platoon leader, executive officer, and company commander.

8.  The award certificates provided by the applicant show he received the Bronze Star Medal, Meritorious Service Medal, and Army Commendation Medal for his exceptionally meritorious service with the 30th Infantry Regiment, to include service in Iraq and Afghanistan.

9.  Army Regulation 27-10 (Military Justice) prescribes the guidelines for filing records of NJP.  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.  The ABCMR will not remove a properly completed and facially valid DA Form 2627 from a Soldier's record unless the Soldier provides compelling evidence to support a removal request.

10.  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 U.S. Government.

	a.  Once recorded, it will not be removed except as provided by law or this regulation.  Types of authorized military personnel files include the OMPF.

	b.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by one of several specified agencies to include the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the Article 15 he received should be removed from his OMPF because it has served its intended purpose and its retention may deny him further promotion.

2.  The evidence in this case suggests 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 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 NJP.  He chose to accept NJP in lieu of demanding trial by court-martial.

4.  The imposing commander directed that the Article 15 be filed in the applicant's restricted section of his OMPF.  There is no evidence of error or injustice.  The applicant's contention that the Article 15 has served its purpose and its retention may prevent his being promoted is not sufficient justification for removal of the Article 15 from 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 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)                                         AR20100021312



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021312



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1