BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110013806 


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 that the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 16 July 2007, be transferred from the performance section to the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states the Article 15 he received has served its purpose.  He contends that he was not selected for a military occupational specialty (MOS) school because of the derogatory information on the performance section of his OMPF.  The Article 15 also kept him from getting promoted with his peers because he had to wait an additional 2 years to be considered for promotion to sergeant first class due to his reduction in rank.  He states the punishment has served its purpose because he is reminded every day of how his life has changed.  The Article 15 took away key opportunities to excel in his military career and he has learned the importance of Army values and why they should be embraced.  He takes full responsibility for his actions.  He accepted the punishment and Soldiered on.  He is constantly counseling young Soldiers as well as his peers on the importance of doing the right thing. 

3.  The applicant provides three third-party statements, college transcripts, his Enlisted Record Brief, and three DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 25 January 1999 and is currently serving in the RA in the rank of staff sergeant (SSG)/E-6.

2.  On 16 July 2007, while holding the rank of SSG and serving as a recruiter, he accepted nonjudicial punishment (NJP) for violating Article 92 of the UCMJ by wrongfully engaging in sexual conduct with a contact/prospect.  He was reduced to the rank of sergeant/E-5 as part of his punishment.  He did not appeal the punishment.

3.  The imposing commander directed the DA Form 2627 be filed in the performance section of his OMPF.  A review of his OMPF reveals the DA Form 2627 is filed in the performance section.

4.  A review of his OMPF also revealed the following:

	a.  His personal conduct, as it pertains to the Article 15 was addressed in an NCOER for the period ending 5 July 2007.

	b.  He was promoted again to the rank of SSG with an effective date of 1 May 2008 (10 months following the Article 15 punishment).

	c.  Since the imposition of the Article 15, he was awarded the Army Good Conduct Medal (third and fourth awards), Combat Action Badge, Joint Service Achievement Medal, Joint Service Commendation Medal, and the Army Commendation Medal.

5.  On 19 October 2010, he submitted an appeal to the Department of the Army Suitability Evaluation Board (DASEB) requesting that the DA Form 2627 imposed on 16 July 2007 be transferred from the performance section to the restricted section of his OMPF.  On 2 December 2010, the DASEB voted to deny the transfer of the DA Form 2627 because it did not appear to have served its purpose yet or to be in the best interest of the Army.

6.  He provided three third-party statements that attest to his positive duty performance and support the transfer of the DA Form 2627.  He also provided college transcripts and NCOERs wherein he was rated successful or excellent and among the best by his rater and received successful overall performances and superior ratings by his senior rater.

7.  Army Regulation 27-10 (Military Justice) prescribes the guidelines for the filing of NJP actions.  It states that the decision to file the original DA Form 2627 on the performance or restricted section of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5 of the DA Form 2627.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF and states:

	a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 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 of Army Regulation 600-8-104 shows that DA Forms 2627 are filed in either the performance or restricted sections 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.

9.  Army Regulation 600-37 (Unfavorable Information) states records of NJP 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DA Form 2627 he received should be transferred to the restricted section of his OMPF has been carefully considered. 

2.  The NJP proceedings were conducted in accordance with law and regulation and the DA Form 2627 is properly filed in the performance section of his OMPF as directed by the imposing commander.  There is no evidence of record showing the NJP was imposed in error or was unjust or that it was improperly filed in the performance section of his OMPF.

3.  The third-party statements, the NCOERs, and his contention that the Article 15 he received has served its purpose were carefully considered.  However, when an NJP action reflects substantial breach of military discipline, the interests of the Army are compelling and in such cases the record should be filed in the performance section of the OMPF.

4.  He has not demonstrated the NJP action was unjust or untrue, or that the NJP should be transferred because of the length of time, or that the transfer would be in the best interest of the Army.  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)                                         AR20110013806



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ABCMR Record of Proceedings (cont)                                         AR20110013806



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