IN THE CASE OF:	  

		BOARD DATE:	 17 November 2011 

		DOCKET NUMBER:  AR20110018073 


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 (UCMJ)), dated
17 July 2008, and DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ), dated 1 August 2008, from his Official Military Personnel File (OMPF), or transfer of the documents to the restricted section of his OMPF.

2.  The applicant states he received a field grade Article 15, but it was set aside less than a month later.

   a.  In the course of routinely checking his OMPF, he discovered that the Article 15 was not filed in his OMPF until the June 2011 to early August 2011 timeframe.  Since it was not filed in his OMPF prior to that, he had no reason to believe it would ever be filed in his OMPF.  

   b.  He asserts that since the Article 15 was set aside by the commander, it's as if it never happened.  Having the Article 15 filed in his OMPF affects his chances of selection for special assignments and promotion.

3.  The applicant provides a copy of the DA Form 2627 (with Continuation Sheet), dated 17 July 2008, and DA Form 2627-2, dated 1 August 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 August 2002.

2.  He was promoted to sergeant (SGT)/pay grade E-5 on 1 November 2005.

3.  A DA Form 2627 (with Continuation Sheet) shows that nonjudicial punishment (NJP) was imposed by the applicant's battalion commander for him being absent from 30 June to 4 July 2008, in violation of Article 86, UCMJ, and on 27 June 2008, with intent to defraud, altering an official record and forging the signature of the unit commander, which record was false and the applicant knew to be false, in violation of Article 109, UCMJ.

   a.  On 17 July 2008, the applicant placed his signature on the DA Form 2627 indicating he did not demand trial by court-martial; he requested a closed hearing; a person to speak in his behalf was not requested; and matters in defense, mitigation, and/or extenuation were not presented.

   b.  Following a closed hearing where all matters presented in defense, mitigation, and/or extenuation were considered, the commander placed his signature on the document.  The punishment imposed was reduction to specialist (SPC)/pay grade E-4; forfeiture of $1,023.00 for two months, suspended, to be automatically remitted if not vacated before 4 January 2009; 45 days of extra duty; and 45 days of restriction, to be automatically remitted if not vacated before 4 January 2009.

	c.  Item 5 shows the commander directed the DA Form 2627 be filed in the performance section of the applicant's OMPF.  He also advised the applicant of his right to appeal to the Commander, 21st Cavalry Brigade, within 5 calendar days.

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

   e.    Item 11 (Allied Documents and/or Comments) contains the entries:
"DA Form 4856 [Developmental Counseling Form], Forged DA Form 31 [Request and Authority for Leave], ERB [Enlisted Record Brief], and Flag [DA Form 268]."

4.  A DA Form 2627-2 shows the battalion commander set aside the punishments of reduction to SPC (E-4); forfeiture of $1,023.00 for two months (suspended); 45 days of extra duty; and 45 days of restriction that was imposed on 17 July 2008.

   a.  He based his action on phone records provided by the applicant and the first sergeant that proved the applicant was in contact with his chain of command and that he was not absent without leave.
   
   b.  The commander indicated "the violation of Article 109 still stands, but punishment shall be delegated to unit for the violation and remedial training" and "all rights, privileges, and property affected are hereby restored."

   c.  The commander confirmed that he directed the original DA Form 2627 be filed in the performance section of the applicant's OMPF.

5.  A review of the applicant's OMPF maintained in the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of a DA Form 2627 (with Continuation Sheet), dated 17 July 2008, and
DA Form 2627-2, dated 1 August 2008, are filed in the performance section of the applicant's OMPF.

6.  The following allied documents are filed in the restricted section of the applicant's OMPF:

* DA Form 31, dated 23 April 2008
* Leave and Earnings Statement (March 2008)
* Automobile Insurance Identification Card
* Privately Owned Vehicle Risk Assessment Report, dated 24 April 2008
* Applicant's Alabama Driver License
* Headquarters Command, III Corps, Fort Hood, TX, memorandum, dated 23 April 2008, subject:  Pass / Leave Request
* DA Form 4856, dated 8 July 2008
* DA Form 31, dated 24 April 2008 [Forged]
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated
5 July 2008
* DA Form 268, dated 10 July 2008
* ERB, dated 10 July 2008

7.  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.


	b.  Depending on the purpose, documents will be filed in the OMPF in one of the three sections:  performance, service, or restricted.  It shows:

* DA Form 2627 is filed in either the performance or restricted section, as directed in item 5 of the DA Form 2627
* allied documents to the Article 15 are filed in the restricted section
* DA Form 2627-2 is filed in the same section as original DA Form 2627
* if Article 15 is wholly set aside on or after 1 September 1979, move it and the form that sets it aside to the restricted section

   c.  Paragraph 2-3 (Composition of the OMPF) 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 may 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.

8.  The Manual for Courts-Martial, Part IV (Punitive Articles), sets forth the statutory elements of each offense, in part, as follows:

* Article 86 (Absence without leave)
* Article 107 (False official statements)
* Article 109 (Property other than military property of United States - waste, spoilage, or destruction)
* Article 123 (Forgery)

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

   a.  Paragraph 3-6 (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.


   b.  Paragraph 3-28 (Setting Aside and Restoration) provides that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.
   
	    (1)  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.

	    (2)  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

   c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the DA Form 2627 (with Continuation Sheet), dated 17 July 2008; the allied documents; and DA Form 2627-2, dated
1 August 2008, should be removed from his OMPF, or all documents transferred to the restricted section of his OMPF, because the NJP was set aside by the commander.

2.  The applicant's contention was carefully considered.

   a.  Records show that on 1 August 2008, the commander found that evidence proved the applicant had not violated Article 86, UCMJ.  As a result, he aside the punishment he had previously imposed under Article 15 (on 17 July 2008).

   b.  Records also show that on 1 August 2008, the commander affirmed the applicant's violation of Article 109, UCMJ, and punishment for that violation was then delegated to the unit commander.  [It is noted that the offense on the Article 15 was mischaracterized as a violation of Article 109, when it should have been Article 107 or Article 123.  However, the mischaracterization is of no import to the Board's review.]
   
   c.  The battalion commander's statement allowed the company commander to take action as he or she deemed appropriate in regard to the violation.  As the battalion commander had not found the applicant "not guilty" of the "Article 109" offense, the company commander could have offered an Article 15 for that offense or taken any other appropriate, lesser forms of action.

   d.  The battalion commander was obviously satisfied that the company commander would take appropriate action within the exercise of his command discretion, or the battalion commander would have taken other action under his own authority.  Thus, the evidence of record shows the NJP imposed under the Article 15 was "wholly set aside" by the battalion commander.

   e.  By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 2627 and
DA Form 2627-2 are untrue or unjust.  In fact, the documents offer a true and accurate record of the matter under review.  Therefore, there is an insufficient basis for removing the Article 15 and allied documents from his OMPF.
   
   f.  However, the evidence of record shows that the DA Form 2627 (with Continuation Sheet), dated 17 July 2008, and DA Form 2627-2, dated 1 August 2008, are improperly filed in the performance section of the applicant's OMPF. Therefore, it would be appropriate to correct the applicant's records by transferring the documents to the restricted section of his OMPF.

   g.  The evidence of record shows that the nine (9) allied documents that are filed in the restricted section of the applicant's OMPF are properly filed.  

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 DA Form 2627 (with Continuation Sheet), dated 17 July 2008, and DA Form 2627-2, dated 1 August 2008, to the restricted section of his OMPF.

2.  The Board further determined the evidence presented is 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 Article 15 and allied documents from his OMPF.

3.  This Record of Proceedings and all associated documents will be filed in the restricted section of 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)                                         AR20110018073



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ABCMR Record of Proceedings (cont)                                         AR20110018073



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