IN THE CASE OF:	  

		BOARD DATE:  27 March 2012

		DOCKET NUMBER:  AR20120002044 


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 that the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), imposed on 21 December 2009, be removed from the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states there is no error or injustice with his records.  He is currently deployed to Afghanistan and has improved significantly since the incident.  He believes the DA Form 2627 will hinder him from advancing in his career.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 September 1999.  He is currently serving on active duty in the rank and pay grade of staff sergeant (SSG)/E-6.

2.  On 8 April 2009, while deployed to Iraq and serving in the rank of SSG, he accepted nonjudicial punishment (NJP) for disobeying a lawful general order by wrongfully consuming alcoholic beverages.  He did not appeal the punishment.

3.  The imposing commander directed the DA Form 2627 be filed in the restricted section of his OMPF.  A review of his OMPF reveals the DA Form 2627 and allied documents are filed in the restricted section.
4.  He was reduced from SSG/E-6 to sergeant (SGT)/E-5, due to the NJP.  However he was again promoted to SSG/E-6 on 1 April 2010.

5.  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.  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.  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(1)(a) states that for Soldiers in the ranks 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 section 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 rank 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 Army Board for Correction of Military Records.  It further indicates there must be evidence that demonstrates error or injustice to a degree justifying removal.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation provides 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 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.

7.  Paragraph 2-3 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 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 removal of a DA Form 2627 from his OMPF has been carefully considered.

2.  The available evidence confirms his NJP proceedings were conducted in accordance with law and regulation and the DA Form 2627 is 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 the DA Form 2627 was imposed in error or that it was unjust.  In order to remove a document from the OMPF, there must be evidence showing that the document is in error or unjust, or the applicant must present compelling evidence to warrant removal as a matter of equity.

3.  He has not demonstrated the NJP action was unjust or untrue, or that the NJP should be removed due to the length of time, or that the removal would be in the best interest of the Army.  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)                                         AR20120002044



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ABCMR Record of Proceedings (cont)                                         AR20120002044



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