IN THE CASE OF:	  

		BOARD DATE:	    16 June 2011

		DOCKET NUMBER:  AR20110003337


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 the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]) he received on
22 May 2006 from the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states there is no error; he just wants it removed from his OMPF.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) staff sergeant (SSG)/E-6.

2.  In 2006, he was a sergeant (SGT)/E-5 serving in Iraq.  On 5 April 2006, he was performing duties at Entry Control Point (ECP) 11, Forward Operating Base (FOB) Prosperity, Baghdad.  During his duties, he failed to obey an order or regulation.

3.  A DA Form 4856 (Developmental Counseling Form), dated 6 April 2006, states:

You were caught…sitting in the dog handler's vehicle instead of manning your post.  You were assigned the post of delagate [sic] search which [sic] sole responsibility is to guard the dog handler during the search of vehicles entering the Green zone.  You abandoned your post in view of lower enlisted Soldiers so that you could sit in the vehicle and have air conditioning.  You were seen in the CP [Command Post] over live video feed, and when asked your position, you immediately exited the vehicle and pretended to walk out from behind the barrier located by the vehicle.  You stated "can you see me now" and "it's hard to see me when I'm behind the barrier."  This total disregard for your duties on the check point and the fact you lied to a senior noncommissioned officer…will not be tolerated on the check point

4.  On 18 May 2006, the applicant was offered nonjudicial punishment (NJP) under Article 15, UCMJ, for the offense of dereliction of duty on or about 5 April 2006.  He accepted the NJP on 22 May 2006 and he requested a closed hearing.  He was found guilty and punished by:

* oral admonition
* reduction to specialist (SPC)/E-4
* forfeiture of $967.00
* extra duty for 45 days

The applicant did not appeal his punishment and the NJP imposing authority directed the DA Form 2627 be filed in the restricted section of the applicant's OMPF.

5.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial:

	a.  Paragraph 3-6 addresses the filing of an NJP and provides that a commander’s decision where to file a record of NJP is as important as the decision relating to the imposition of the NJP itself.  In making a filing 


determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  

	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance or restricted section of 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 superior authority.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 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 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.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 (Composition of the OMPF) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed in Item 5 of the DA Form 2627.

7.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  


The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 18 May 2006, should be removed from his OMPF.

2.  The evidence of record confirms the applicant, a SGT in a leadership position, violated the UCMJ and subsequently accepted NJP on 22 May 2006 for dereliction of duty.  The imposing commander directed this Article 15 be filed in the restricted section of his OMPF.  He elected not to appeal his punishment.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted portion of the applicant's OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show that the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust.  

4.  In view of the foregoing evidence, there is no evidence of error or injustice.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief in this case.  

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)                                         AR20110003337



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ABCMR Record of Proceedings (cont)                                         AR20110003337



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