IN THE CASE OF:	 

	BOARD DATE:	21 August 2008  

	DOCKET NUMBER:  AR20080007602 


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, UCMJ), dated 29 August 2001, from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he was performing the duties of Staff Duty Noncommissioned Office (SDNCO) when the Staff Duty Runner got into an altercation with a drunken Soldier.  The applicant also states that the Staff Duty Officer (SDO) instructed him to hold the drunken Solider down, which he did; however, he was later arrested by the Military Police and accused of assault.  The applicant adds that he was simply obeying the orders of the SDO and did nothing wrong.  The applicant states that the DA Form 2627, dated 29 August 2001, shows that he did not do anything wrong; however, it was placed in his OMPF by mistake because the administering officer did not know which block to initial for the filing of the document.  The applicant further states that he applied to the Department of the Army Suitability Board (DASEB) to have the DA Form 2627 removed from his OMPF or transferred to the restricted potion of his OMPF and the DASEB directed that the DA Form 2627 be transferred to the restricted portion of his OMPF.  The applicant concludes by requesting the DA Form 2627 be removed from his OMPF because it has hindered him from being promoted and he does not want that to happen again.

3.  The applicant provides copies of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 29 August 2001; Headquarters, 1st Battalion,
7th Field Artillery, 1st Infantry Division, Memorandum for Record, dated 16 May 
2005, subject:  Transfer or Removal of Derogatory Data; and Headquarters, Office of the Deputy Chief of Staff G-1, Special Review Boards, Alexandria, Virginia, memorandum, dated 2 June 2006, subject:  Resolution of Unfavorable Information.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show he enlisted in the U.S. Army Reserve (USAR) on 12 October 1994 and entered active duty in the Regular Army (RA) for a period of 4 years on 24 January 1995.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  The applicant was promoted to the rank of sergeant (SGT)/pay grade E-5, effective 1 November 1997, and he served overseas in the Republic of Korea from 16 March 1998 through 23 April 1999.  He was honorably released from active duty on 23 April 1999 and credited with completing 1 year, 1 month, and 8 days foreign service and 4 years and 3 months net active service this period.  He was transferred to Headquarters and Headquarters Detachment, Graves Registration, 246th Quartermaster Battalion, U.S. Army Reserve Command, Aguadilla, Puerto Rico, with a Reserve obligation termination date of 11 October 2002.

2.  The applicant's military service records show he reentered active duty in the RA on 29 November 1999, served in Kuwait in support of Operations Desert Spring and Enduring Freedom from 17 November 2001 to 24 May 2002, and was awarded the Purple Heart for wounds received in action on 2 November 2004.  The applicant is currently serving on active duty in the rank of Sergeant First Class (SFC)/pay grade E-7.

3.  The applicant’s military service records contain a DA From 2626, dated
29 August 2001.  This document shows, in pertinent part, that on 16 August 2001, the captain serving as Commander, A Battery, 3rd Battalion, 29th Field Artillery, Fort Carson, Colorado, notified the applicant of his intent to impose non-judicial punishment against him for, on or about 6 July 2001, assaulting a Soldier by pushing him to the ground, a violation of Article of 128.  On 29 August 2001, the applicant affixed his initials and signature in Item 3 of the document indicating he did not demand trial by court-martial; that he requested a closed hearing; and that a person to speak in his behalf was not requested.  However, matters in defense, mitigation, and/or extenuation would be presented in person.  Following a closed hearing where all matters presented in defense, mitigation, and/or extenuation were considered, the commander affixed his signature in Item 4 of the document directing “[n]o punishment, no evidence to say this NCO has done anything wrong.”  Item 5 of this document shows the commander directed that 

the original DA Form 2627 be filed in the performance portion of the applicant's OMPF.  The applicant indicated with his initials that he did not appeal the Article 15 and he also signed the document in Item 7.

4.  A review of the applicant's OMPF revealed that the DA Form 2627 is filed in the restricted portion of his OMPF.

    a.  The review also revealed that a copy of Headquarters, 1st Battalion,
7th Field Artillery, 1st Infantry Division, Memorandum for Record, dated 16 May 2005, subject:  Transfer or Removal of Derogatory Data, in which the applicant requested that the DA Form 2627, dated 29 August 2001, be removed from his OMPF or transferred to the restricted portion of his OMPF, is filed in the restricted portion of the applicant’s OMPF.

    b.  The review further revealed that a copy of Headquarters, Office of the Deputy Chief of Staff G-1, Special Review Boards, Alexandria, Virginia, memorandum, dated 2 June 2006, subject:  Resolution of Unfavorable Information, which approved the transfer of the DA Form 2627, dated 29 August 2001, from the performance portion to the restricted portion of the applicant’s OMPF, is filed in the restricted portion of the applicant’s OMPF.

5.  In support of his request, the applicant provides copies of the DA Form 2627, dated 29 August 2001; Headquarters, 1st Battalion, 7th Field Artillery, 1st Infantry Division, Memorandum for Record, dated 16 May 2005, subject:  Transfer or Removal of Derogatory Data; and Headquarters, Office of the Deputy Chief of Staff G-1, Special Review Boards, Alexandria, Virginia, memorandum, dated
2 June 2006, subject:  Resolution of Unfavorable Information.  The 3 documents were previously considered in this Record of Proceedings.

6.  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.  This Army regulation also instructs, in pertinent part, that once placed in the OMPF, the document becomes a permanent part of that file and will not be removed or moved to another part of the OMPF, unless directed by appropriate authority.  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 by Item 5 of the DA Form 2627, or appropriate authority.


7.  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 may not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army (HQDA) 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.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

9.  Army Regulation 600-37, Chapter 7 (Appeals and Petitions), provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  It states that appeals and petitions for removal of unfavorable information are to be directed to the DASEB.  Paragraph 7-2 (Policies and standards) of this regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

10.  Army Regulation 600-37, paragraph 7-2c (Petition for transfer of Articles 15) of this Army regulation states that this provision is limited to records of non-judicial punishment imposed under the provisions of Article 15, UCMJ, and applies only to members in grades E-6 and above, officers, and warrant officers. This paragraph also shows, in pertinent part, that records of non-judicial punishment may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.  Claims that an Article 15 is untrue or 

unjust, in whole or in part, will not be considered under this paragraph.  The authority to adjudicate such claims rests with the Army Board for Correction of Military Records, under Army Regulation 15-185, after the recipient has exhausted all other means for administrative remedy as contained in Army Regulation 27-10.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the DA Form 2627, dated 29 August 2001, and related documents that are filed in the restricted portion of his OMPF should be removed because there was no evidence to support any wrongdoing on his part; no punishment was adjudicated; he has taken full responsibility for his actions and learned from the experience; and the DA Form 2627 has served its purpose in that it has hindered him from being promoted and attaining his goals and full potential as a professional Soldier.

2.  It is noted that the commander who imposed the DA Form 2627 did not impose any punishment against the applicant based on his determination that the applicant had not done anything wrong; however, that is not to say the incident did not occur.  It is also noted that, on 2 June 2006, the DASEB determined that the intent of the proceedings under Article 15 had been served and directed the DA Form 2627 be transferred from the performance portion to the restricted portion of the applicant’s OMPF.

3.  The evidence of record shows that the DA Form 2627, dated 29 August 2001, along with the 2 memoranda related to the transfer action, are filed in the restricted portion of the applicant’s OMPF.  The evidence of record also shows that documents in the restricted portion 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.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust.

4.  The applicant provided insufficient evidence to show that the DA Form 2627 is untrue in this case.  In this regard, the independent evidence provided by the applicant does not show there was an error made in the filing of the document that would support removing it from his OMPF.  Accordingly, the evidence of record confirms the DA Form 2627, and related documents in question, are correctly filed in the restricted section of the applicant's OMPF.

5.  However, it is noted that the applicant provides a viable argument that having the DA Form 2627 and the related documents filed in his OMPF is unjust, in this instance.  The commander’s decision concerning punishment, while not directly stated, was a finding of not guilty.  Therefore, as a matter of justice, the DA Form 2627 and all related documents should be removed from the applicant's OMPF, in this case.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from the applicant's OMPF the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 29 August 2001; Headquarters, 1st Battalion,
7th Field Artillery, 1st Infantry Division, Memorandum for Record, dated 16 May 2005, subject:  Transfer or Removal of Derogatory Data; and Headquarters, Office of the Deputy Chief of Staff G-1, Special Review Boards, Alexandria, Virginia, memorandum, dated 2 June 2006, subject:  Resolution of Unfavorable Information. 

2.  To ensure this decision results in no unintended harm to the individual concerned, following completion of the administrative corrections directed herein, the Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing.  The Record of Proceedings and associated documents will not be filed in 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)                                         AR20080007602



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ABCMR Record of Proceedings (cont)                                         AR20080007602



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