IN THE CASE OF:	

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110015963 


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 the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), dated 11 June 2008, from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, only a field grade Article 15 should be filed in the OMPF.  He received a company grade Article 15, which should have been filed in the unit's local files.  Once he departed the unit, the file should have been destroyed.

   a.  He states the incident occurred more than three years ago and the punishment he received was minor.  However, the filing of the Article 15 in his OMPF has resulted in it being made severe in terms of his military career when his records are reviewed by promotion selection boards.

   b.  Since then he has consistently been rated in the top 10% of all warrant officers on his Officer Evaluation Reports (OERs).

   c.  He has learned from his mistake and desires to continue to serve in the U.S. Army to the best of his ability.

3.  The applicant provides a copy of the DA Form 2627, dated 11 June 2008, without the continuation sheet or allied documents.


CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Regular Army from
7 January 2003 through 6 November 2006.  He served in military occupational specialty (MOS) 15T (UH-60 Helicopter Repairer) and he attained the rank of sergeant/pay grade E-5.

2.  The applicant was appointed as a Reserve warrant officer and he was ordered to active duty on 7 November 2006.

3.  A DA Form 2627 (with Continuation Sheet) shows nonjudicial punishment (NJP) was imposed against the applicant by Major Veronika L. R----, Commander, Company B, 1st Battalion 145th Aviation Regiment, for:

* on 7 March 2008, failing to obey a lawful order issued by the company commander, in violation of Article 92, UCMJ
* on 10 March 2008, with intent to deceive, making an official statement to a superior warrant officer that the applicant knew to be totally false, in violation of Article 107, UCMJ
* on 11 March 2008, with intent to deceive, making an official statement to a superior warrant officer that the applicant knew to be totally false, in violation of Article 107, UCMJ

   a.  On 11 June 2008, the applicant placed his signature on the DA Form 2627 indicating he did not demand trial by court-martial; he requested an open hearing; a person to speak in his behalf was not requested; and matters in defense, mitigation, and/or extenuation were not presented.

   b.  Following an open hearing where all matters presented in defense, mitigation, and/or extenuation were considered, the commander placed her signature on the document and imposed punishment of 14 days of restriction. Item 5 shows the commander directed the DA Form 2627 be filed in the performance section of the applicant's OMPF.  She also advised him of his right to appeal to the Commander, 1st Battalion, 145th Aviation Regiment, within
5 calendar days.

   c.  The applicant placed his signature in item 7 and also indicated with his initials that he did not appeal the Article 15.

4.  A review of the applicant's OMPF maintained in the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the DA Form 2627 (with Continuation Sheet), dated 11 June 2008, and the following allied documents are filed in the performance section of the applicant's OMPF:
* Memorandum For Record, dated 8 April 2008
* State of Georgia, Application for Marriage License
* three DA Forms 3881 (Rights Warning Procedure/Waiver Certificate), dated 10 March, 8 April, and 23 April 2008
* two DA Forms 2823 (Sworn Statement), dated 10 & 11 March 2008
* DA Form 4856 (Developmental Counseling Form), dated 8 April 2008
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG), dated 8 April 2008
* Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, Orders 205-113, dated 24 July 2006
* Headquarters, U.S. Army Aviation Warfighting Center, Fort Rucker, AL, Orders 300-223-A-1806, dated 27 October 2006
* Officer Record Brief, dated 14 May 2008
* Bravo Company, 1st Battalion, 145th Aviation Regiment, 1st Aviation Brigade, Fort Rucker, AL, memorandum, dated 19 June 2007, subject:  B Company Policy Letter - Leave and Pass Policy

5.  The applicant was promoted to chief warrant officer two (CW2)/pay grade
W-2 on 7 November 2008.

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

	a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.  Depending on the purpose, documents will be filed in the OMPF in one of the three sections:  performance, service, or restricted.

   b.  Table 2-1 shows the DA Form 2627 is filed in either the performance or restricted section, as directed in item 5 of the DA Form 2627; allied documents accompanying the Article 15 are filed in the restricted section.

7.  Army Regulation 27-10 (Military Justice), Chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.

   a.  Paragraph 3-5 (Reference to superior) provides that NJP should be administered at the lowest level of command commensurate with the needs of discipline, after thoroughly considering the nature and circumstances of the offense and the age, previous record, maturity, and experience of the offender.


   b.  Paragraph 3-6 (Filing determination) 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, and total service.  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.

   c.  Paragraph 3-37 (Distribution and filing of DA Form 2627 and allied documents) provides that for Soldiers who are at the rank of specialist or corporal (pay grade E-4) and below (prior to punishment), the original will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority.  For all other Soldiers, the original will be sent to the appropriate records custodian for filing in the OMPF.

   d.  Paragraph 3-43 (Transfer or removal of records of NJP), subparagraph e, states that Army Regulation 15-185 (Army Board for Correction of Military Records) contains policy and procedures for applying to the Army Board for Correction of Military Records (ABCMR) and for the correction of military records by the Secretary of the Army.  Requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted.  This includes requests under this paragraph.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the DA Form 2627, dated 11 June 2008, should be removed from his OMPF because it was improperly filed in the performance section of his OMPF instead of in the unit's local files.

2.  The applicant's contention was carefully considered; however, the evidence of record does not support his contention.

   a.  The governing Army regulation shows that NJP should be administered at the lowest level of command commensurate with the needs of discipline and that it is the commander's decision on whether or not to file a record of NJP in the performance or restricted section of a Soldier's OMPF.

   b.  The NJP was imposed against the applicant based on, in pertinent part, two specifications of violation of Article 107, UCMJ.  Specifically, he knowingly executed two official, sworn statements to a superior officer, both of which were totally false, thereby demonstrating his lack of integrity.

   c.  Accordingly, the commander directed the DA Form 2627 be filed in the performance section of the applicant's OMPF.

3.  The governing regulation provides that the commander must weigh 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 interests of the Army are compelling when the record of NJP reflects a lack of integrity [emphasis added].

4.  By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal.

   a.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 2627 filed in the performance section of his OMPF is untrue, in error, or unjust.  Therefore, the DA Form 2627, dated 11 June 2008, is deemed to be properly filed and should not be removed from the applicant's OMPF.

   b.  However, the 13 allied documents that are attached to the DA Form 2627 are improperly filed in the performance section of the applicant's OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  __X______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the 13 allied documents that are attached to the DA Form 2627, dated 11 June 2008, from the performance to the restricted section of the individual's OMPF.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the DA Form 2627 from the individual's OMPF.  




      _______ _   _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)                                         AR20110015963



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ABCMR Record of Proceedings (cont)                                         AR20110015963



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