IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110021956 


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 DA Forms 2627 (Record of Proceedings under Article 15 (Uniform Code of Military Justice (UCMJ)) dated 29 March 2000 and 4 March 2005 from his Official Military Personnel File (OMPF).

2.  He states the two DA Forms 2627 have served their intended purpose.  His past poor behavior has not and will not reoccur.  He has learned from his mistakes and now applies them to his leadership, mentoring and training of both new and seasoned Soldiers.  Since the two DA Forms 2627 were placed in his OMPF he has been assigned to numerous leadership positions.  He has attained a Bachelor's, Master's, and Doctoral degree since 2001.  He feels removal of the DA Forms 2627 would be in the best interest of both the Army and himself.

3.  He provides:

* a self-authored statement
* a letter of support from a Boys and Girls Club general manager
* a memorandum, subject:  Acceptance to Reclassify Primary Military Occupational Specialty (MOS) 15E in Accordance with Military Personnel Message 11-213
* seven DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)
* permanent order for 5th award of the Army Good Conduct Medal
* college degree documents
* two memoranda, subject:  Commander's Support - Security Clearance
* three letters of recommendation for the Warrant Officer Candidate Program
* DA Form 1059 (Service School Academic Evaluation Report)
* Security Clearance Verification memorandum for record
* Enlisted Record Brief
* a copy of the two DA Forms 2627

  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 15 September 1993.  He continues to serve through reenlistments.  He was promoted to pay grade E-6.

3.  On 29 March 2000, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order. The commander imposing the NJP directed the DA Form 2627 be filed in the restricted portion of his OMPF.

4.  On 4 March 2005, he accepted NJP for willfully failing to use his government travel card for official purposes only and for dishonorably failing to pay a debt of $1,177.73.  This second DA Form 2627 was filed in the performance portion of his OMPF in accordance with paragraph 3-6 of Army Regulation 27-10 (Military Justice).

5.  He provided numerous documents in support of his request including a self-authored statement describing his assignments to leadership positions and civilian education accomplishments.

6.  Army Regulation 27-10 provides policy for the administration of military justice.

	a.  Chapter 3 provides that NJP is appropriate in all cases involving minor offenses in which non-punitive 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.  If a record of NJP has been designated for filing in a Soldier’s restricted section, the Soldier’s OMPF will be reviewed to determine if the restricted section contains a previous record of NJP.  In those cases in which a previous DA Form 2627 that has not been wholly set aside has been filed in the restricted section and in which prior to that punishment, the Soldier was in the grade of sergeant (SGT) or higher, the present DA Form 2627 will be filed in the performance section.  The filing should be recorded on the present DA Form 2627 in block 11.  The Soldier concerned and the imposing commander will be informed of the filing of the DA Form 2627 in the performance section.

	c.  Table 3-2, Rule 3, states if a member applies to the ABCMR for transfer of records of NJP from the performance portion of the OMPF on the basis that evidence exists which demonstrates error or injustice to a degree justifying removal, then the DA Form 2627 filed in the performance portion of the OMPF will, on approval of the member’s application, be processed in accordance with the instructions of the ABCMR.

	d.  Paragraph 3-43b(1) states enlisted Soldiers (SGT and above) and commissioned officers may request the transfer of a record of NJP from the performance section of their OMPF to the restricted section under the provisions of this regulation.  To support the request, the person must submit substantive evidence that the intended purpose of UCMJ, Article 15 has been served and that transfer of the record is in the best interest of the Army.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies and mandated operating tasks for the Military Personnel Information Management/Records Program of the Military Personnel System.  Paragraph 2-4 states 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.





DISCUSSION AND CONCLUSIONS:

1.  The two NJP's imposed on 29 March 2000 and 4 March 2005 were in compliance with applicable laws, regulations, and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  The DA Forms 2627 are filed in accordance with the applicable Army regulation.  The applicant admits that he, in fact, committed the misconduct involved.  Removal of the DA Forms 2627 would be justified only if it were to be determined NJP should never have been imposed, which is clearly not the case.

2.  His higher levels of civilian education and demonstrated duty performance since the incidents are noted; however, this is not sufficiently mitigating evidence to warrant removal of the properly filed DA Forms 2627 from his OMPF.

3.  However, after careful review of this case, the applicant’s demonstrated duty performance for over 6 years after his NJP, dated 4 March 2005, demonstrates it has served the purpose for which it was intended.  Therefore, it would be equitable to transfer the DA Form 2627, dated 4 March 2005, from the performance portion to the restricted portion of the applicant’s OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined the applicant's NJP's were properly imposed and there is no compelling reason/argument to warrant removing the NJP's from his OMPF or transferring them from the performance portion to the restricted portion.  

2.  Further, both NJP's were properly administered.  The Board disagrees that the NJP's have fully served their intended purpose.


3.  Therefore, the Board determined the evidence presented was insufficient to warrant the relief requested.




      _______ _   XXX_______   ___
               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)                                         AR20110021956



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ABCMR Record of Proceedings (cont)                                         AR20110021956



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