IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002783 


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 an Article 15 from his records.

2.  The applicant states it may be a mistake in that wrong information has been entered into his military record.  He personally has no idea or knowledge about the error or injustice.  He was honorably released from active duty (REFRAD) on 30 June 2008 in the rank/grade of specialist (SPC)/E-4.  He now figured out that he was reduced to private (PV1)/E-1 or private (PV2)/E-2, but he is not exactly sure why.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Military Identification Card
* Mobilization orders
* Defense Finance and Accounting Service (DFAS) Leave and Earnings Statement for check dated 1 February 2012
* Dental Records
* Chronological Records of Medical Care

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 (USAR) in the rank/grade of SPC/E-4 on 11 April 2006 and he held military occupational specialty 09L (Translator Aide).  He was ordered to active duty on 17 November 2006 and he subsequently served in Kuwait/Iraq from 14 January 2007 to 1 April 2008.

3.  On 7 April 2007, in the rank/grade of SPC/E-4, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in deportment toward a senior noncommissioned officer.  His punishment included a reduction to PV1/E-1.  He elected not to appeal his punishment.

4.  Item 5 (filing instructions) of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), regarding filing the Article 15 in the performance or the restricted section of his official military personnel file (OMPF) is lined through and replaced with the entry "N/A" (Not Applicable).

5.  On 30 June 2008, the applicant was honorably REFRAD at the completion of required active service.  He was transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligation.  The DD Form 214 he was issued at the time shows his rank/grade as SPC/E-4 with a date of rank of 11 April 2006.

6.  It appears this Article 15 was not processed to his personnel and pay records until a later time; after redeployment and his REFRAD.  Review of the applicant's interactive Personnel Records Management System (iPERMS) file shows the Article 15 is currently filed in the performance section 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 3-37 states for Soldiers who are at the rank of SPC or corporal (CPL) and below (prior to punishment) the original will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 5 of DA Form 2627 as "NA."

	b.  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.  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 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.  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 in Item 5 of the DA Form 2627.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was a SPC/E-4 at the time he accepted the NJP.  The imposing officer annotated the entry "NA" regarding filing this NJP in the applicant's OMPF.  For unknown reasons, the Article 15 was filed in the performance section of the applicant's OMPF.

2.  By regulation, for Soldiers who are at the rank of SPC or CPL and below (prior to punishment) the original will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate the entry "NA" in item 5 of DA Form 2627.

3.  While there is no evidence of record to show that the DA Form 2627 is untrue or unjust, its filing is problematic.  Therefore, this Article 15 together with any allied documents should be expunged from his OMPF.

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 the Article 15, dated 9 April 2007, and allied documents from the performance section of his 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)                                         AR20120002783



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ABCMR Record of Proceedings (cont)                                         AR20120002783



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