IN THE CASE OF:	  

		BOARD DATE:	 15 March 2012 

		DOCKET NUMBER:  AR20110017452 


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, Uniform Code of Military Justice (UCMJ)), dated 8 May 1986 from his official military personnel file (OMPF).

2.  The applicant states when he was a very young Soldier he made the mistake of shoplifting while in the Fort Riley main Post Exchange.  He cannot articulate how much he regrets his actions that day.  What he did is not by any means who he was then and certainly not who he is now.  He will not offer the excuse that he shoplifted because he was young and dumb; he knew better and was taught better by both his parents and the Army.  It was very poor decision on his part and he deeply regrets his actions.  He lacks the words how to express his embarrassment that his actions caused him due to this one blemish on his record.  He believes that having this in his military record is unjust based on that fact that it is such a small thing overall.  A small mistake made by a young man who was not thinking about the bigger picture and how that mistake would affect him in the years to come.

3.  He further states he went on to have a great career in the Army.  He has worked directly for one and two-star generals and was given a secret clearance during the period he worked for them.  He led troops in to battle during the Gulf War (1991) and was a good and effective leader during his entire enlistment.  As 



a civilian he has worked in positions of trust as a Security Officer for the Transportation Security Administration and as a police officer for Customs and Border Protection.  He went to college and received a degree in computer programming.  He has become a valued member of his community and never repeated the mistake he made.  He hopes the review board will try to see the type of person he has become and that this one instance is not a reflection of his entire life.  He has become a better person and this one small action should not be allowed to portray a reflection of something he is not.

4.  The applicant provides his nonjudicial punishment (NJP) under Article 15 of the UCMJ and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 16 July 1985 and held military occupational specialty 11B (Infantryman).  He served in a variety of stateside and overseas assignments.  The highest grade he held while serving on active duty was staff sergeant (SSG)/E-6.

3.  On 8 May 1986, in a closed hearing, while holding the rank/grade of private/
E-2, he accepted NJP under the provisions of Article 15 of the UCMJ for violating Article 121 of the UCMJ by stealing two cassette tapes, on 4 April 1986, valued at approximately $13.50, from the Army and Air Force Exchange Service.

4.  His punishment consisted of a forfeiture of $167.00 pay for 1 month (suspended), and 14 days of extra duty and restriction.  The imposing commander directed the original DA Form 2627 be filed in the restricted section of his Official Military Personnel File (OMPF).  He elected not to appeal his punishment.  

5.  His records contain ten noncommissioned officer evaluation reports which range in date from September 1989 to April 1998.  These reports:

	a.  list his date of rank/grade for sergeant/E-5 as 1 September 1989 and his date of rank/grade for SSG as 1 March 1996; and 

	b.  show that he was considered to be a competent Soldier and a solid performer with high moral standards.  His rating chain thought highly of him.

6.  He was honorably discharged from active duty on 22 April 1998.  His 
DD Form 214 shows he completed 12 years, 9 months, and 22 days of creditable active service.  

7.  There is no record he applied to the Department of the Army Suitability Review Board to have his Article 15 removed.

8.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice:

	a.  Chapter 3 provides that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  It further states that NJP is appropriate in all cases involving minor offenses in which nonpunitive 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.

	b.  Paragraph 3-37b(1)(a) provides that the decision to file the report of NJP (DA Form 2627) in the performance or restricted portions in the OMPF will be made by the imposing commander at the time punishment is imposed.  

9.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) establishes the responsibilities, policies, and procedures for 
maintaining and controlling the OMPF.  It states that once a document is placed 
in the OMPF, it becomes a permanent part of that file and will not be removed 
from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  Table 2-1 of this regulation states Article 15s issued on or after 1 Nov 82 will be filed on P or R fiche as directed by item 5, DA Form 2627.  If the Article 15 is wholly set aside and is filed on the P fiche, it will be moved to the R fiche. File the DA Form 2627–2 (Record of Supplementary Action under Article 15, UCMJ) directing the action on the R fiche.  If the 
Article 15 is filed on the R fiche, also file the DA Form 2627–2 setting it aside on the R fiche.  Article 15s issued to an enlisted member will be moved to the R fiche if enlisted member changes status to commissioned or warrant officer.  File allied documents accompanying Article 15s on the R fiche. 

10.  Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, provides 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.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received NJP under the provisions of Article 15 for stealing two cassette tapes valued at approximately $13.50, from the Army and Air Force Exchange Service.  He elected not to have a trial by court-martial and not to appeal the NJP.

2.  He has not provided evidence to show nor argued that an error or injustice occurred to a degree which would justify removing the NJP from his military record.  Therefore, he is not entitled to have this NJP removed from his record.

3.  For historical purposes, the U.S. Army has an interest in maintaining the integrity of its records.  In this regard, the information contained therein should reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed.  As such, the Article 15 is properly filed in his OMPF.

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)                                         AR20110017452





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ABCMR Record of Proceedings (cont)                                         AR20110017452



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