IN THE CASE OF: 

		BOARD DATE: 20 September 2011

		DOCKET NUMBER:  AR20110012042 


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 7 March 2008 record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, either be removed from his official military personnel file (OMPF) or transferred to the restricted section.

2.  The applicant states it has been over 3 years since the incident and in that time he has been an exemplary noncommissioned officer (NCO).  He has held positions higher than his pay grade with outstanding results.  He must have the record of NJP moved or removed before he can continue on with his military career.

3.  The applicant provides copies of the record of NJP and NCO Evaluation Reports (NCOER's) covering the period 1 July 2008 through 30 June 2011.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army sergeant (SGT)/E-5 who initially enlisted on 20 November 2002.  He subsequently reenlisted on 30 March 2006 and 10 August 2009.

2.  His records show his military occupational specialty as 36B (Financial Management Technician).  He has been assigned to Fort Carson, CO, and Iraq.

3.  On 7 March 2008 while serving as an SGT, he accepted NJP for being disrespectful in language toward a superior NCO.  His punishment was a 

forfeiture of $1,118.00 per month for 2 months, which was suspended.  He did not appeal the punishment.  The imposing commander directed that the record of NJP be filed in the performance section of the applicant's OMPF.

4.  A review of his OMPF reveals the DA Form 2627 is filed in the performance section of his OMPF.

5.  His records show that since he received NJP he:

	a.  received three NCOER's wherein he was rated mostly successful or excellent and among the best by his raters and received a successful overall performance and superior rating by his senior raters.  The last NCOER shows he was performing duty in a staff sergeant (SSG)/E-6 position; and
 
	b.  graduated from the Warrior Leader Course.  Comments on the DA Form 1059 (Service School Academic Evaluation Report), dated 12 November 2009, include:  "Demonstrated an ability to perform and communicate with superior results, was superb in taking the initiative in tactical situations, is an exceptionally strong participant in all group efforts."

6.  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 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(2) states that for Soldiers in the ranks of SGT 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 section 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 that 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).  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.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the OMPF.

	a.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 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.

	b.  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 the NJP he received should be removed from his OMPF or, in the alternative, moved to the restricted section of his OMPF.

2.  The evidence in this case suggests that NJP was properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.

3.  The evidence also shows he was afforded due process in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.  He chose to accept NJP in lieu of demanding trial by court-martial.

4.  The imposing commander directed that the record of NJP be filed in the applicant's performance section of his OMPF.  There is no available evidence of error or injustice.  The applicant has not submitted any evidence that the existence of NJP in the performance section of his OMPF is hindering his military career.

5.  It is noted that he has performed well since the imposition of NJP; however, although eligible, he did not provide any evidence showing he has been recommended for promotion to SSG.  Additionally, he has not provided any letters of support from his current chain of command.  With continued outstanding performance and promotion to SSG, the applicant may consider reapplying for removal or transfer of the record of NJP to the restricted section of his OMPF at a later date.

6.  In view of the above, there is no basis for granting the applicant's requested relief.


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)                                         AR20110012042



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1