BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120003272 


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 transfer of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 10 May 2002, from the performance section to the restricted section of her Army Military Human Resources Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

2.  She states she received the Article 15 for taking her birthday off; however, this document does not reflect that.  She wants her records cleared.

3.  She provides:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* various forms of identification 

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.  After having prior enlisted service in the Regular Army (RA) and the Army National Guard (ARNG), the applicant enlisted in the RA on 14 March 2000 and served in military occupational specialty 92G (Food Service Specialist).  She attained the rank/grade of sergeant (SGT)/E-5 on 11 April 2001.

3.  Her record shows she accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ on 10 May 2002.  This document shows she was charged with violating Article 86 of the UCMJ for being absent without authority from her unit on or about 9 April 2002 and remaining so absent until on or about 10 April 2002.  She indicated that having been afforded the opportunity to consult with counsel, she did not demand trial by court-martial, she requested a closed hearing, she did not request a person to speak in her behalf, and she did not present any matters in defense, mitigation, and/or extenuation.

4. On 10 May 2002, her punishment consisted of a reduction to specialist (SPC)/E-4, forfeiture of pay for two months, and extra duty for 45 days.  She did not appeal the imposed punishment.

5.  Further review of the Article 15 shows the administering officer placed his initials in item 5 (I direct the original DA Form 2627 be filed in the performance fiche of the OMPF).

6.  A review of the applicant's interactive Personnel Electronic Records Management System (iPERMS) file shows the DA Form 2627 is filed in the performance section and the allied documents (counseling statements, sworn statements, and a field grade Article 15 worksheet) are filed in the restricted section.

7.  On 13 March 2003, she was honorably discharged after completing 2 years, 11 months, and 28 days of net active service this period with 1 day of time lost due to being absent without leave.  A review of her record further shows she enlisted in the ARNG on 15 January 2003.

8.  Her record contains a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows she was honorably discharged from the ARNG on 12 March 2006 at the expiration of her term of service.


9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.

	a.  Chapter 3 implements the filing procedures for the Article 15, UCMJ.  It states the decision whether to file a record of NJP in the performance section of a Soldier's AMHRR rests with the imposing commander at the time punishment is imposed.

	b.  With the exception of summarized proceedings, Article 15 proceedings are recorded on a DA Form 2627, which will be filed in either the performance or the restricted section of the AMHRR of those Soldiers in the rank/grade of SGT/E-5 and above.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP from the AMHRR.  It states that application for removal of an Article 15 from a Soldier's AMHRR based on error or injustice will be made to the ABCMR.  It further states 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.

10.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in their individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their 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 their AMHRR.

	a.  Paragraph 7-2 states that once a document has been directed for filing in the AMHRR, 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.  The regulation contains provisions for the transfer of a DA Form 2627 from the performance section to the restricted section of the AMHRR.

	b.  Furthermore, records of NJP imposed under the provisions of Article 15, UCMJ, 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.


11.  Army Regulation 600-8-104 (Army Military Human Resources Record Management) prescribes the policies governing the AMHRR.  It also prescribes the composition of the AMHRR.  It states that once a document is placed in the AMHRR 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.  It also states that forms recording punishment imposed after 1 November 1982 are filed in the performance or restricted section of the AMHRR as directed by item 5 of the DA Form 2627.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to transfer the DA Form 2627 from the performance to the restricted section of her AMHRR was considered and found to have merit.

2.  The evidence of record confirms she was administered NJP under Article 15, UCMJ for being AWOL for 1 day.  The punishment was administered in accordance with the applicable regulation, all requirements of law were met, and her rights were fully protected throughout the process.

3.  Given her rank at the time, this document had to be filed either in the performance or the restricted section of her AMHRR.  However, the administering officer, in his discretion, chose to file the DA Form 2627 in the performance section of the applicant's record.

4.  Evidence of record shows the applicant's overall service since she was administered NJP under Article 15, UCMJ indicates she honorably served her country for the remainder of her RA tour and then in the ARNG.

5.  The governing regulation authorizes the transfer of an Article 15 from the performance to the restricted portion of the AMHRR when it can be determined that the document has served its intended purpose.  The evidence of record in this case shows the applicant has accepted responsibility for her actions.

6.  In view of the foregoing, it would be appropriate at this time to transfer the subject Article 15 from the performance section to the restricted section of her AMHRR in her iPERMS file.


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 transferring the DA Form 2627, dated 10 May 2002, and all related documents from the performance section to the restricted section of her AMHRR based on it having served its intended purpose.



      __________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)                                         AR20120003272



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ABCMR Record of Proceedings (cont)                                         AR20120003272



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