IN THE CASE OF:	  

		BOARD DATE:	    8 March 2012

		DOCKET NUMBER:  AR20110017766 


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 the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 December 2004, from his Official Military Personnel File (OMPF).

2.  The applicant states the resulting Article 15 was to be a closed hearing and filed in the restricted section of his OMPF.  As of this date, it is still showing on his records and causing him to have a record with the Federal Bureau of Investigation as having been arrested and is also shown on the Georgia Career Information Center (GCIC) searches.  As a result, he has been turned down for jobs.  He completed his punishment as required.  Even the victim stated she wanted her case handled at the lowest level.  He wants this all cleared up so he can gain employment.

3.  Per phone conversation on 14 February 2012 with the case analyst of record, the applicant indicated he will pursue the issue of removing his name from the titling block of the U.S. Army Criminal Investigation Command (USACIDC, also referred to as CID) and National Criminal Information Center (NCIC) so his name can be removed from the NCIC record, which titles him for indecent sexual assault. 

4.  The applicant provides:

* His DA Form 2627
* CID Form 94 (Agent’s Investigation Report), dated 9 November 2004
* Two employment denial letters
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 September 1993.  He held military occupational specialty (MOS) 31B (Military Police (MP).  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant (SGT)/E-5.

2.  He served in Korea from March 2004 to an unknown date.  He was assigned to the 55th MP Company, 94th MP Battalion.

3.  On 29 September 2004, Private First Class (PFC) BMR, a female, reported she was indecently assaulted.  A follow-on CID investigation established probable cause to believe the applicant committed the offense of indecent assault when he placed his hands on PFC BMR’s breasts during a training exercise.

4.  On 20 December 2004, while holding the rank/grade of SGT/E-5 and serving as a team leader, and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for committing an indecent assault upon PFC BMR, a person not his wife, by grabbing her breasts with the palms of his hands, with intent to gratify his sexual desires.

5.  His punishment consisted of a reduction to specialist (SPC)/E-4, a suspended forfeiture of $970.00 pay per month for 2 months, and 45 days of extra duty and restriction.  The imposing commander directed the original DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The applicant elected not to appeal his punishment.

6.  A review of his OMPF in the interactive Personnel Electronic Records Management System (iPERMS) reveals the DA Form 2627 is in fact filed in the restricted section of his OMPF.

7.  His record shows that since his incident in 2004, he accomplished the following:

* He was honorably discharged from active duty on 22 September 2008 by reason of non-retention 
* He enlisted in the Georgia Army National Guard (GAARNG) on
16 September 2008 for a period of 6 years
* He was ordered to active duty from 1 March 2009 to 11 April 2010 and he served in Afghanistan from 20 April 2009 to 26 February 2010
* He was promoted to SGT/E-5 on 1 July 2009

8.  He provides two letters from two civilian Police Departments informing him that a background investigation yielded negative information that necessitated a discontinuance of his application for employment.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’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 less time and personnel than trial by court-martial.

	a.  Paragraph 3-6 addresses the filing of an NJP and 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 the 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, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  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.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-37b(2) states that for Soldiers in the rank of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of 

NJP reflecting misconduct in the grade of SGT or above that have not been wholly set aside and recorded in the restricted section.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  There must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 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 (Composition of the OMPF) of Army Regulation 600-8-104 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed in Item 5 of the DA Form 2627.

11.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides, in pertinent part, that 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, a SGT in a leadership position, violated the UCMJ and subsequently accepted NJP on 20 December 2004 for indecent sexual assault.  The imposing commander directed this Article 15 be filed in the restricted section of his OMPF.  He elected not to appeal his punishment.  

2.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted section of his OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show that the DA Form 2627 is untrue or unjust.  

3.  He believes the presence of this Article 15 in his OMPF affects his employability.  However, when an NJP action reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline, the interests of the Army are compelling and in such cases the record should be filed in his OMPF.  The fact that he indecently assaulted a female Soldier and comrade in arms while holding the rank of SGT is evidence of a substantial breach of military discipline.

4.  Any negative impact of this NJP appears to be a natural result of his actions.  The applicant failed to demonstrate the NJP is in error or unjust or that it would be in the best interest of the Army to remove it.  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)                                         AR20110017766



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ABCMR Record of Proceedings (cont)                                         AR20110017766



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