IN THE CASE OF:	 

		BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110020901 


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 movement of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) he received on 25 October 2006 from the performance section of his official military personnel file (OMPF) to the restricted section or placement of his DA Form 2627 in his local file at his unit.

2.  The applicant states:

* the DA Form 2627 was supposed to be moved to the restricted section of his OMPF
* he had never been in trouble before and was unaware he could appeal the Article 15
* he appealed the Article 15 after the fact and the Article 15 was overturned
* his punishment was vacated and remitted
* the DA Form 2627 is viewable by the promotion board for E-7 and is making a bad mark on his career

3.  The applicant provides:

* DA Form 2627
* memorandum, Headquarters, 2d Infantry Division, Unit Number 15543, Korea, dated 21 December 2006
* memorandum, U.S. Army Trial Defense Service, Camp Casey Field Office, Region VI, Unit Number 15104, Korea, dated 10 January 2007
* memorandum, Trial Defense Service, Region VI, U.S. Army Garrison Casey Field Office, Casey Legal Center, Delta Detachment, 176th Finance Battalion, Unit Number 15041, Korea, dated 26 January 2007

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 5 April 2001.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The applicant is presently serving in the Regular Army in the rank/grade of staff sergeant/E-6.

3. On 25 October 2006, the applicant was offered nonjudicial punishment (NJP) under Article 15, UCMJ, for violating a general lawful order, to wit:  U.S. Forces Korea Command Policy Letter Number 7, subject:  General Order Regarding Off-Installation Curfew, dated 4 June 2006, by wrongfully being outside his military installation during curfew hours in violation of Article 92, UCMJ.

4.  On 30 October 2006, he accepted the NJP and requested an open hearing.  He was found guilty and was reduced from sergeant/E-5 to specialist/E-4.  His DA Form 2627 was directed for filing in the performance portion of his OMPF.

5.  On 10 January 2007, the applicant and his counsel appealed the Article 15.  On 7 February 2007, the NJP appellate authority directed that his reduction to 
E-4 be automatically remitted or vacated on or before 19 February 2007 and the DA Form 2627 filed in the restricted section of the applicant's OMPF.

6.  A review of the applicant's OMPF shows the DA Form 2627 is filed in both the performance and restricted sections of his OMPF.

7.  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 filing of NJP and provides that a commander's decision where to file a record of NJP 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 ranks of sergeant 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 NJP 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 higher 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 ABCMR.  It further indicates that 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.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation states that only those documents listed in table 2-1 (Composition of the OMPF) 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 shows 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.

9.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides 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 applicant's request for moving his DA Form 2627 to the restricted section of his OMPF or to his local file at his unit was carefully considered and determined to have partial merit.

2.  His NJP proceedings were conducted in accordance with law and regulation and the evidence of record confirms the appropriate appellate authority directed filing his DA Form 2627 in the restricted section of his OMPF.

3.  The applicant's DA Form 2627 and allied documents are properly filed in the restricted portion of his OMPF; however, the DA Form 2627 is also filed in the performance section of his OMPF.  Therefore, he is entitled to correction of his records to have this form removed from the performance section of his OMPF.

4.  There is no evidence of record and the applicant provides no evidence to show the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 removing the DA Form 2627 from the performance 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 his DA Form 2627 from the restricted section of his OMPF and placement in his local file with his unit.



      ___________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)                                         AR20110020901



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ABCMR Record of Proceedings (cont)                                         AR20110020901



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