IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110001653 


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 his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) he received on
10 February 2005 from his Official Military Personnel File (OMPF).  In the alternative, he requests transfer of his Article 15 to the restricted section of his OMPF.

2.  He states that on 9 December 2004, while serving as a squad leader at Fort Drum, NY, he was notified that his unit commander was considering whether he should be punished under Article 15, UCMJ.  On 10 February 2005, he elected to have his case heard in a closed hearing, which resulted in 30 days of extra duty as administered by his battalion commander.

3.  He also states the commander directed the DA Form 2627 be filed in the performance section of his OMPF and the Board should consider removing it altogether or filing it in the restricted section due to his performance since the incident.

4.  He provides his last five DA Forms 2166-8 (NCO (Noncommissioned Officer) Evaluation Reports (NCOERs)).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 July 1996.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  After a series of reenlistments, he is currently serving on active duty in the rank/grade of staff sergeant (SSG)/E-6.

2.  His record contains a DA Form 3975 (Military Police Report) and a DA Form 3975-4 (Military Police Report - Additional Persons Related to Report).  These documents show that on 13 November 2004 he was apprehended by military authorities after a neighbor reported a domestic incident between the applicant and his wife.  He was charged with assault.  He submitted a written statement admitting to the offense and he was later released to his unit.

3.  On 9 December 2004, a DA Form 4856 (Developmental Counseling Form) shows he was counseled on the possibility of receiving punishment under Article 128 (Assault), UCMJ for the incident that occurred on 13 November 2004.  It was also noted in the counseling that his chain of command was unaware of his prior problems or the dates of punishments for his past charges.  He indicated he agreed with the counseling rendered and signed the form. 

4.  His record contains the DA Form 2627, which was administered on 
10 February 2005.  This document shows he was charged with violating Article 128, UCMJ on 13 November 2004 for choking his wife, dragging her on the ground, sitting on her, and hitting her on the body with his hands.  The following punishment was imposed:

* reduction to the grade of sergeant (SGT)/E-5 (suspended)
* 30 days of extra duty

5.  Further review of the DA Form 2627 shows the administering officer placed his initials in item 5 (I direct the original DA Form 2627 be filed in the performance fiche of the OMPF) of the form.

6.  A review of the applicant's interactive Personnel Records Management System (iPERMS) file shows the DA Form 2627 was filed in both the performance and restricted section.

7.  He provided his last five DA Forms 2166-8 ranging in date from 1 February 2006 through 28 May 2010.  Some of the NCOERs reflect his service in a deployed environment and contain no adverse comments:

* Part IV (Army Values/Attributes/Skills/Actions) shows all “Yes” ratings
* Part IV (Values/NCO Responsibilities) shows a mix of “Excellence” and Success” ratings
* Part V - Rater (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows four ratings of “Among the Best” and one rating of “Fully Capable”
* Part V - Senior Rater (Overall Performance) shows three ratings in Successful “1” block and two ratings in Successful “2” block
* Part V - Senior Rater (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows three ratings in Superior “1” block and two ratings in Superior “2” block

8.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements the filing procedures for the Article 15, UCMJ.  It states that the decision whether to file a record of nonjudicial punishment (NJP) in the performance section of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.

9.  Army Regulation 27-10 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 the restricted section of the OMPF of those Soldiers in the rank/grade of SGT/E-5 and above.  Local filing of these documents is authorized only for Soldiers in the rank/grade of corporal (CPL) or specialist (SPC)/E-4 and below.

10.  Army Regulation 27-10, paragraph 3-43, contains guidance on the transfer or removal of records of NJP from the OMPF.  It states that application for removal of an Article 15 from a Soldier's OMPF based on error or injustice will be made to the 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.

11.  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.  ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files; and

	c.  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.


12.  Army Regulation 600-37, paragraph 7-2 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).

13.  Army Regulation 600-37 also states that records of nonjudicial punishment imposed under the provisions of Article 15, UCMJ, may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  It also states, in pertinent part, that forms recording punishment imposed after 1 November 1982 are filed in the performance or restricted section of the OMPF as directed by item 5 of the DA Form 2627.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to transfer the DA Form 2627 from the performance to the restricted section of his OMPF or to remove it completely was carefully considered.

2.  The evidence of record confirms he was administered NJP under Article 15, UCMJ for assaulting his wife.  The punishment was administered in accordance with the applicable regulation, all requirements of law were met, and his rights were fully protected throughout the process.

3.  Given his rank at the time, this document had to be filed either in the performance or the restriction section of his OMPF.  However, due to the seriousness of the offense, the administering officer, in his discretion, chose to file the DA Form 2627 in the performance section of the applicant’s OMPF and the applicant did not indicate he appealed the decision.
4.  Evidence of record shows the applicant's overall service since he was administered NJP under Article 15, UCMJ indicates that he has performed his duties in an outstanding manner.

5.  The governing regulation does authorize the transfer of an Article 15 from the performance to the restricted portion of the OMPF when it can be determined that the document has served its intended purpose.  The evidence of record in this case shows the applicant has accepted responsibility for his actions.  

6.  It appears that an administrative error occurred which resulted in the DA Form 2627 being filed in both the performance and restriction section of his OMPF.  It is concluded that the Article 15 in question has served its intended purpose.  Thus, it would be appropriate to remove this document from the performance portion and maintain the current copy in the restricted portion of the applicant's OMPF at this time. 

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 10 February 2005 and all related documents from the performance portion of his OMPF based on it having served its intended purpose.








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 10 February 2005 from the restricted portion of his 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)                                         AR20110001653



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ABCMR Record of Proceedings (cont)                                         AR20110001653



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