IN THE CASE OF:
BOARD DATE: 19 July 2011
DOCKET NUMBER: AR20110005668
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 DA Form 4187 (Personnel Action) dated 28 April 1999, which announced his reduction in grade, be transferred to the restricted section of his Official Military Personnel File (OMPF).
2. The applicant states, in effect, that the record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) he accepted on
23 April 1999 was to be filed in the restricted section of his OMPF. However, the DA Form 4187 which directed the reduction in grade portion of the punishment is filed in the service section of the OMPF. It should be moved to the restricted section of the OMPF.
3. The applicant provides a copy of the NJP.
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 applicants 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 applicants 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 a staff sergeant (SSG) stationed at Fort Jackson, SC.
3. On 23 April 1999, the applicant accepted NJP for failing to obey a lawful command from his superior commissioned officer. He was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP. He did not demand trial by court-martial. His punishment imposed was reduction to specialist four (SP4) and extra duty and restriction for
45 days.
4. The imposing commander directed the record of the NJP be filed in the restricted section of his OMPF.
5. On 28 April 1999, the Commander, 10th Combat Support Hospital, issued a DA Form 4187 announcing the applicant was reduced to SP4 with date of rank and effective date of 23 April 1999.
6. Army Regulation (AR) 27-10 (Military Justice) states in paragraph 3-37g: Allied documents will be transmitted for administrative convenience with the original DA Form 2627 for filing on the restricted section of the OMPF.
7. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) in effect at the time, states in paragraph 612b: When an Article 15 reduction is accomplished for misconduct and the Article 15 was directed to be filed on the restricted section (R fiche) of the OMPF, a DA Form 4187 will be prepared by the Personnel Administration Center for permanent filing in the Military Personnel Records Jacket (MPRJ) to substantiate the reduction. The DA Form 4187 will not contain the reason for the Article 15. The DA Form 4187 will be removed and forwarded to the OMPF when the Soldier is promoted to sergeant (SGT) or higher.
8. The DA Form 4187 is filed in the service section of his OMPF.
9. 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, 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 OMPF unless directed by one of several entities, including the ABCMR.
10. Table 2-1 of Army Regulation 600-8-104, Composition of the OMPF, states: Forms which reflect reduction imposed under Article 15 (UCMJ) when the Article 15 was designated for filing on the RFiche, file upon promotion to SGT. The "fiche" location is specified as "SC" (Service Computation section of the service fiche).
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the DA Form 4187 which announces the reduction in grade punishment he received in the NJP he accepted on 23 April 1999 should be transferred to the restricted section of his OMPF.
2. The evidence in this case shows the imposing authority elected to have the
23 April 1999 NJP record placed in the restricted section of the applicant's OMPF.
3. The evidence also shows that the DA Form 4187 announcing the applicant's reduction in grade as a result of the NJP should have been, and was, transferred to his OMPF on his promotion to sergeant. The applicant has been promoted to SSG.
4. The DA Form 4187 is correctly filed in the service computation section of his OMPF.
5. In view of the above, the applicant's request should be denied.
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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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110005668
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