IN THE CASE OF:	  

		BOARD DATE:	    10 November 2011

		DOCKET NUMBER:  AR20110009611 


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 a record of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), from his official military personnel file (OMPF).

2.  He states he was not discharged, but an Article 15 was placed in his record after all special court-martial charges against him were dropped.  He believes this cost him his opportunity for promotion and caused him to retire before he was ready.

3.  He provides a special court-martial order.

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.  The applicant enlisted in the Regular Army on 1 December 1988.

3.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows he received nonjudicial punishment (NJP) on 4 April 2006 for being derelict in the performance of his duties by negligently failing to report drill sergeant misconduct and making an official statement with intent to deceive.  He did not demand trial by court-martial and requested an open hearing.  After considering all matters presented in defense, mitigation, and/or extenuation, his commander imposed NJP in the form of reduction to sergeant/E-5 (suspended with automatic remission if not vacated before 1 October 2006) and forfeiture of $1,137 pay per month for 2 months.  The commander directed filing the DA Form 2627 in the performance portion of his OMPF.  The applicant elected to appeal and submit additional matters.

4.  Special Court-Martial Order Number 1 issued by Headquarters, U.S. Army Aberdeen Proving Ground, Aberdeen Proving Ground, MD, dated 6 April 2006, shows he was charged with failing to obey a lawful order, being negligently derelict in the performance of duty, and making false official statements.  The proceedings were terminated on 6 April 2006 when the convening authority withdrew the charges and specifications.

5.  On 11 April 2006, a judge advocate confirmed he had considered the applicant's appeal of his NJP and found the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate to the offense committed.

6.  On 12 April 2006, the appeal authority denied the applicant's appeal of the NJP.

7.  The DA Form 2627 is filed in the performance portion of his OMPF.  Documents pertaining to his appeal are filed in the restricted portion of his OMPF.

8.  The applicant retired on 31 July 2009 in the rank/grade of staff sergeant/E-6 after completing 20 years and 8 months of active military service.

9.  There is no evidence showing he applied to the Department of the Army Suitability Evaluation Board (DASEB) to request transfer of the DA Form 2627 to the restricted portion of his OMPF.

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

	a.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of 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(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted portions in the OMPF will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by superior authority.  For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.

	c.  Paragraph 3-43e states that absent compelling evidence to the contrary, a properly-completed, facially-valid DA Form 2627 will not be removed from a Soldier's record by the ABCMR.

11.  Army Regulation 600-8-104 (Military Personnel (MILPER) Information Management/Records) prescribes the policies and mandated operating tasks for the MILPER Information Management/Records Program of the MILPER System.  It establishes principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  It states that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from an OMPF or moved to another part of the OMPF unless directed by competent authority.

12.  The Manual for Courts-Martial states a convening authority or superior competent authority may cause any charges or specifications to be withdrawn from a court-martial for any reason at any time before findings are announced.
DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record and the applicant provides insufficient evidence to show the DA Form 2627 filed in the performance section of his OMPF is invalid or unjust.

2.  The Article 15 proceedings were conducted in accordance with law and regulation.  The DA Form 2627 was properly completed and properly filed in the performance section of his OMPF as directed by the imposing commander.

3.  The fact that special court-martial proceedings against him were terminated has no bearing on the propriety of the NJP he received.  The convening authority had the authority to withdraw charges and specifications at any time before findings were announced.  Withdrawal of charges is not equivalent to a finding of not guilty.

4.  In the absence of compelling evidence showing the NJP the applicant received was invalid or unjust, there is no basis for granting the relief he requests.

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)                                         AR20110009611



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ABCMR Record of Proceedings (cont)                                         AR20110009611



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