IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110015356 


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, in effect, removal of three DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) from his official military personnel file (OMPF).

2.  The applicant states he has two DA Forms 2627 filed in the performance section of his OMPF and one DA Form 2627 filed in the restricted section of his OMPF and he desires that they be removed from his OMPF.  He goes on to state he is not happy and he does not condone his actions, but he served his punishment and learned a very important lesson.  He now desires to have his record cleared so he can progress in his future endeavors and achieve higher rank.

3.  The applicant provides copies of his three DA Forms 2627.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 December 1993 for a period of 3 years.  He completed training and has remained on active duty through a series of continuous reenlistments.

2.  On 6 April 1999 while serving in pay grade E-5, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order by using a government credit card for his personal use and failing to go to his place of duty. 
His punishment consisted of reduction to pay grade E-4, forfeiture of pay (suspended for 6 months), and extra duty.  The imposing officer directed the DA Form 2627 to be filed in the performance section of his OMPF and the applicant did not appeal the punishment.

3.  On 6 April 2003 while serving in pay grade E-5, NJP was imposed against the applicant for wrongfully operating a privately-owned vehicle without a valid U.S. Army Europe operator's permit.  His punishment consisted of reduction to pay grade E-4, forfeiture of $912.00 (suspended for 90 days), and extra duty.  The imposing officer directed filing the DA Form 2627 in the restricted section of the applicant's OMPF.  The applicant appealed the punishment and his appeal was denied on 7 April 2003.

4.  On 9 November 2009 while serving in pay grade E-6 as a drill sergeant, NJP was imposed against the applicant for three specifications of wrongfully engaging in illegal associations with three Soldiers-in-training. His punishment consisted of reduction to pay grade E-5 (suspended until 7 February 2010), forfeiture of $1,414.00 pay per month for 2 months (suspended until 7 February 2010), and 45 days of extra duty (suspended until 7 February 2010).  The imposing commander directed filing the DA Form 2627 in the restricted section of the applicant's OMPF.  However, the DA Form 2627 was filed in the performance section of his OMPF because there already was a DA Form 2627 filed in the restricted section of his OMPF.  The applicant did not appeal his punishment.

5.  The applicant was promoted to pay grade E-7 on 1 January 2010 and is presently serving in Iraq.

6.  Army Regulation 27-10 (Military Justice) provides that the decision to file DA Forms 2627 in the performance or restricted section of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander is final and is indicated in item 5 of the DA Form 2627.

7.  Paragraph 3-6 of Army Regulation 27-10 provides guidance for the filing determination for the DA Form 2627 and associated documents.  It states that the restricted section of the OMPF is that portion of the OMPF that contains information not normally viewed by career managers or selection boards.  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 where a previous record of NJP imposed against an individual serving in pay grade E-5 or higher has been previously filed in the restricted section, the NJP will be filed in the performance section.  In other words, only one record of NJP may be filed in the restricted section of the OMPF for Soldiers in pay grade E-5 or higher.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) serves as the authority for the filing and release of documents authorized for filing in the OMPF.  It states that the restricted section is used for historical data that may normally be improper for viewing by selection boards or career managers.  Documents in this section are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, corrections to other parts of the OMPF, record investigation reports, to record appellate actions, and to protect the interest of the Soldier and the Army.  The release of information on this fiche is controlled and will not be released without written approval from the Commanding General, U.S. Army Human Resources Command, or the Headquarters, Department of the Army, selection board proponent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the three records of NJP should be removed from his records because he learned his lesson and served his punishment has been noted and was found to lack merit.  All of the NJP's were imposed while the applicant was serving in noncommissioned officer grades.  The very fact that he received three is indicative that the records should remain as filed.

2.  The records of NJP were properly filed in the restricted and performance sections of his OMPF as directed by the imposing commander and there appears to be no valid reason to remove them.  It is noted that the applicant was promoted to the rank of sergeant first class after the imposition of his last NJP.  Nonetheless, the Army has an interest in maintaining such documents and the applicant has not shown sufficient reasons why they should not remain a matter of record, even after considering his entire record.

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)                                         AR20110015356



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ABCMR Record of Proceedings (cont)                                         AR20110015356



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