IN THE CASE OF:	  

		BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110013891 


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 reconsideration of his earlier request for removal of one or both records of nonjudicial punishment (NJP) from his official military personnel file (OMPF).

2.  The applicant states:

* He takes full responsibility for his actions and for using poor judgment
* The Article 15s are preventing him from getting promoted
* He continued to soldier on and performed duties at a higher grade and more responsibility
* He completed two deployments, one in Afghanistan and one in Iraq, and he is now deployed to Iraq on his third combat tour
* He received 4 awards of the Army Commendation Medal, 6 awards of the Army Achievement Medal, and 6 awards of the Army Good Conduct Medal; he also continues to perform at the highest level

3.  The applicant provides:

* Statement from his commander
* Statement from the imposing officer
* Enlisted Record Brief
* 8 DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070000559 on 21 February 2007.

2.  The applicant submitted two statements which, although not received within 1 year of the original Board decision, were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and warrant consideration by the Board.

3.  The applicant enlisted in the Regular Army on 3 October 1991 and he held military occupational specialty 44C – now 36B – (Finance Specialist).  He served through multiple reenlistments in a verity of stateside or overseas assignments and he attained the rank of sergeant (SGT)/E-5 on 29 August 1997 and staff sergeant (SSG)/E-6 on 1 September 2001. 

4.  His records also show he served in Germany, from September 1995 to August 1998 and January 201 to November 2004; Afghanistan, from February 2006 to February 2007; and Iraq, from April 2009 to March 2010.  He is currently deployed to Iraq.

5.  He was awarded Army Commendation Medal (4th Award), Army Achievement Medal (6th Award), Meritorious Unit Commendation, Army Good Conduct Medal (6th Award), National Defense Service Medal (2nd Award), Afghanistan Campaign Medal, Iraq Campaign Medal, Global War on Terrorism Service Medal, NCO Professional Development Ribbon with Numeral 2, Army Service Ribbon, Overseas Service Ribbon (4th Award), and NATO Medal.

6.  On 17 June 1998, while a SGT/E-5, assigned to the 208th Finance Battalion, Heidelberg Germany, he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order to stay away from his wife.  His punishment consisted of 14 days of extra duty.  He elected not to appeal.  The imposing commander directed the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be filed in the restricted section of his OMPF.

7.  On 21 July 2005, while a SSG/E-6, assigned to the 10th Soldier Support Battalion, Fort Drum, NY, he accepted NJP under the provisions of Article 15 of the UCMJ for being drunk on duty.  His punishment consisted of a reduction to SGT/E-5 (suspended) and a forfeiture of $500 pay per month for 2 months.  He elected not to appeal.  The imposing commander directed the DA Form 2627 be filed in the restricted section of his OMPF.

8. Since the applicant's records shows he had previously received an NJP and it was filed in the restricted section of his OMPF, the filing location for the second NJP was changed to the performance section of his OMPF in accordance with Army Regulation 27-10 (Military Justice).

9.  He submits:

	a.  A statement, dated 25 April 2011, from the imposing commander of the second NJP, wherein he states that the applicant proved his incident was an aberration and the right thing to do is to clear his record. 

	b.  A statement, dated 5 April 2011, from his company commander who opines that the second Article 15 had a direct correlation on the applicant’s failure to be selected for promotion.  He describes the Article 15 has served its purpose in that the applicant has received 9 consecutive excellent evaluations, has served in positions of greater responsibility, and has certainly been rehabilitated. 

	c.  Eight NCO Evaluation Reports from December 2004 to May 2010 which show he has continuously been rated among the best by his raters and with a superior potential for promotion by his senior raters. 

10.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 states that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member'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 fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

11.  Paragraph 3-6 states that if a record of NJP has been designated for filing in a Soldier’s restricted section, the Soldier’s OMPF will be reviewed to determine if the restricted section contains a previous record of NJP.  In those cases in which a previous DA Form 2627 has not been wholly set aside has been filed in the restricted section and in which prior to that punishment, the Soldier was in the grade of SGT or higher, the present DA Form 2627 will be filed in the performance section.  

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies and mandated operating tasks for the Military Personnel Information Management/Records Program of the Military Personnel System.  Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.  Documents will not be removed from a fiche or moved to another part of the file unless directed by an appropriate authority.

13.  Army Regulation 600-8-104 states 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 the information in the restricted section is controlled and not routinely released to promotion selection boards.  This Army regulation also states that documents authorized for filing in the restricted section are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and corrections to other parts of the OMPF.  It also serves to protect the interests of the Soldier and the Army.

14.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

15.  Chapter 7 of Army Regulation 600-37 contains guidance on appeals for transfer and petitions for removal of unfavorable information from official personnel files and states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  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 those conditions have been met.
DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

2.  He received his first NJP in June 1998 for violating an order not to contact his wife.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  The NJP was properly filed in the restricted section of his OMPF.

3.  He received his second NJP in July 2005 for being drunk on duty.   This NJP was also imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  The NJP was properly filed in the performance section of his OMPF.

4.  It is acknowledged the applicant has rebounded from his infractions in an excellent manner as evidenced by his multiple outstanding evaluations, deployments, awards, and duty assignments.  Army Regulation 27-10 was undoubtedly written to ensure that promotion boards would consider at least a portion of an NCO’s disciplinary history if the Soldier had more than one Article 15.  While it appears that the applicant has worked hard to show his potential and overcome his second Article 15, his accomplishments are not so meritorious as to warrant 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070000559, dated 21 February 2007.



      __________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)                                         AR20110013891



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ABCMR Record of Proceedings (cont)                                         AR20110013891



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