IN THE CASE OF:	  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120001508 


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, Uniform Code of Military Justice (UCMJ)), dated 28 July 1988, from his official military personnel file (OMPF).  He also requests a personal appearance before the Board. 

2.  The applicant states:

* the Article 15 was issued fraudulently and the circumstances never happened
* there is no evidence to prove this situation occurred
* the Article 15 is for a violation of Article 128, UCMJ

3.  The applicant provides:

* self-authored statements
* page 1 of his DA Form 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 U.S. Army Reserve Delayed Entry Program (DEP) for 8 years on 14 June 1985.  On 16 July 1985, he was discharged from the DEP and enlisted in the Regular Army for 4 years on 17 July 1985.  Following Basic Training at Fort Jackson, SC, he was transferred to Fort Gordon, GA for Advanced Individual Training (AIT) in military occupational specialty 31L (Wire Systems Installer).  

3.  After AIT, the applicant remained at Fort Gordon through 1988 and on 
7 March 1988, he departed Fort Gordon en route to a new assignment in Germany.  Records show he arrived in Germany on or about 18 March 1988 and was assigned to Headquarters and Headquarters Company, 141st Signal Battalion, Ansbach, Germany.

4.  The applicant's records contain a DA Form 3975 (Military Police Report) that shows he was apprehended by Fort Gordon Military Police on 24 April 1988 for assault, drunk and disorderly conduct, and resisting apprehension.  While at the Non-Commissioned Officer (NCO) Club, he assaulted his wife.  When the NCO Club manager, a master sergeant, attempted to intervene, he, too, was assaulted.  There is no record of disciplinary action taken against the applicant for this incident.

5.  On 7 June 1988, the 141st Signal Battalion commander appointed an investigating officer to conduct a line of duty (LOD) investigation into the facts and circumstances surrounding a broken jaw the applicant sustained on 21 May 1988.  

6.  On 14 June 1988, a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) was initiated against the applicant.

7.  The LOD investigation determined the applicant was playing cards on 21 May 1988 when a dispute arose.  The applicant and another Soldier became involved in an affray during which time the applicant's jaw was broken.

8.  During the investigation, the applicant made false statements before ultimately admitting the truth about how his jaw was broken.  The LOD determination was "Not in the Line of Duty – Due to Own Misconduct."

9.  The applicant's records contain an Article 15 administered on 21 July 1988 for:

* a violation of Article 128 (assault), UCMJ, in that he did, on or about 31 May 1988, push his wife and strike her in the face
* making a false official statement on 16 June 1988

10.  On 28 July 1988, the imposing commander directed that this Article 15 be filed in the performance section of his OMPF.  On the same date the applicant elected not to appeal his punishment.  

11.  On 8 August 1988, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for continued misconduct.

12.  His chain of command unanimously recommended approval of his separation action with a general discharge.

13.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge, and the rights available to him.  He provided written statements in his own behalf:

* expressing his desire to remain in the military
* accepting responsibility for his actions
* apologizing for his behavior
* requesting a second chance and rehabilitation

14.  On 22 August 1988, the separation authority approved the applicant's discharge action under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.  

15.  On 9 September 1988, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for misconduct – commission of a serious offense.  He completed 3 years, 1 month, and 23 days of creditable active military service.

16.  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.  Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF.  It states 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 applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF.  

17.  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 the filing of an NJP and provides, in pertinent part, 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.  

	b.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states, in pertinent part, 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.

18.  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 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 (Composition of the OMPF) 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.

19.  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 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.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR.  The Director, ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant requested to personally appear before the Board, it was determined that there was sufficient evidence available for a fair and impartial consideration of his case.

2.  The applicant's request for removal of the Article 15 from his OMPF was carefully considered.

3.  The available evidence confirms the applicant violated the UCMJ and subsequently accepted NJP on 28 July 1988 for, in essence, assaulting his wife and providing a false official statement.  The imposing commander directed that this Article 15 be filed in the performance section of his OMPF.  He elected not to appeal his punishment.

4.  The applicant's NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in his OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show that his 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.
5.  The purpose of maintaining the OMPF is to protect the interests of both the Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and may not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

6.  In the absence of compelling evidence showing the NJP the applicant received was invalid or unjust, there is no basis for granting the relief he requests.

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)                                         AR20120001508



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ABCMR Record of Proceedings (cont)                                         AR20120001508



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