IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100029686 


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 removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 24 November 2009, from her official military personnel file (OMPF).

2.  The applicant states this record was supposed to be expunged and was not intended to be placed in her OMPF.  She states her concern was to provide a monthly report to the company level so they could submit the report to the Battalion S4 (Logistics).  The information she sent was concerning their S4 reports and included their suspense dates.  The information was sent on a FRAGO (fragmentary order) that the S3 (Training) published on the secure internet protocol router.  She sent the spreadsheet along with the FRAGO which included the suspense dates and explained about the different reports.  She saved the documents on a compact disc and sent it from her military outlook account to the Soldier's AKO (Army Knowledge Online) account on the non-secure internet protocol router (NIPR).  She was not trying to be malicious or harm the government.  She was trying to get the job done and meet her suspense.

3.  The applicant provides:

* a memorandum, dated 3 July 2010, from her unit commander
* a memorandum, dated 22 June 2010, from the S4 officer in charge (OIC)
* a Memorandum for Record, dated 21 November 2009, from a command sergeant major (CSM)
* a character reference statement, dated 19 November 2009
* DA Form 2627, dated 24 November 2009
* her Enlisted Record Brief (ERB)
* a letter, dated 24 November 2010, from the Army Review Boards Agency

CONSIDERATION OF EVIDENCE:

1.  The applicant is a sergeant first class currently serving in an active duty status in military occupational specialty 92Y (Unit Supply Specialist).

2.  On 19 November 2009, her commander indicated he was considering whether she should be punished under Article 15, UCMJ, for dereliction in the performance of her duties in that she negligently failed to send classified data on a secured information system.  

3.  She submitted a Memorandum for Record, dated 21 November 2009, from a CSM, U.S. Army South, who was her first sergeant from July 2003 to June 2004. He stated the applicant was one of the best noncommissioned officers (NCOs) in his company and she always accomplished all of her mission's right the first time. He understood the consequences of her poor judgment; however, everybody deserves a second chance.  He requested that she be given a letter of reprimand instead of an Article 15 for her actions.  

4.  The applicant's character reference statement, dated 19 November 2009, is from a master supply technician who stated the applicant was always dependable, reliable, honest, trustworthy, peace-loving, and courteous.  This statement indicates the technician asked the commander to reconsider the applicant's punishment because she had always gone out of her way to help others and to be the best that she could.  In this case, she helped out another NCO and it ended up being a mistake on her behalf.

5.  On 24 November 2009, she accepted nonjudicial punishment (NJP) for dereliction in the performance of her duties in that she negligently failed to send classified data on a secured information system.  The punishment imposed was a forfeiture of $1,788 pay for 2 months, suspended until 20 May 2010.  In item 4b of the DA Form 2627 the commander imposing the NJP action directed that the DA Form 2627 be filed in the restricted portion of her OMPF.  She did not appeal the punishment.  

6.  A letter, dated 22 June 2010, from a Captain, S4, OIC, stated that she began working with the applicant in February 2009 and that the applicant was a pillar of professionalism and dedication.  She strongly recommends that the NJP be removed from the restricted portion of the applicant's OMPF due to her dedication to the Army and desire to pursue her career.
7.  The imposing commander submitted a memorandum, dated 3 July 2010, on behalf of the applicant's request for removal of the UCMJ action from her OMPF. The commander requested the UCMJ action be removed.  He stated the applicant violated security protocols by copying parts of a classified order and sending the data over NIPR.  The data was labeled classified, even though it pertained to unclassified property book transactions.  Although a significant violation of security protocols, her actions were executed with the intent of accomplishing the mission.  He states it was not his intent to have the UCMJ action filed in the restricted portion of her OMPF.  To be blunt, the long-term punishment in this case does not meet the nature of the offense nor his intent.  She has great future potential for success and the inclusion of an Article 15 in her file is a disservice to both her and the Army.

8.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice:  

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the NJP process by:

* evaluating the case to determine whether proceedings under Article 15 should be initiated
* determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial
* determining the amount and nature of any punishment, if punishment is appropriate

	b.  Paragraph 3-36 states that when punishment is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action would be recorded on a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).  The decision to file the original DA Form 2627 in the performance section or the restricted section in 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 any superior authority.  

	c.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (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.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) states that once placed in the OMPF, a document becomes a permanent part of that file.  The restricted file of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  Documents in this file include those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods.

DISCUSSION AND CONCLUSIONS:

1.  Prior to the imposition of NJP her commander had two character reference statements including a recommendation from her former first sergeant requesting that she not be given NJP.  It is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process based on the applicant's offense and considered any mitigating factors and factors raised to cast doubt on the applicant's guilt.  The record establishes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.  

2.  The imposing commander now states it was not his intent to have her Article 15 filed in the restricted portion of her OMPF.  However, on the DA Form 2627 he specifically indicated this was where the DA Form 2627 was to be filed.  Therefore, his statement is shown to be a result of retrospective thinking and should not be used as a basis for removing a properly file document.

3.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded that the Article 15 was appropriately issued and filed in restricted portion of the applicant's OMPF.  There is no evidence of an error or injustice.  There is insufficient clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from her OMPF.

BOARD VOTE:

____X___  ____X___  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believed that the intent of the Article 15 has served its purpose.  This, combined with the supporting statement from the imposing commander, who stated it was not his intent to have the Article 15 filed in the restricted portion of the applicant's OMPF, is sufficient to warrant removing the Article 15 from her records.

2.  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     24 November 2009, and any related documents from her OMPF.




      _______ _   XXX_____   ___
               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)                                         AR20100029686



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ABCMR Record of Proceedings (cont)                                         AR20100029686



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