IN THE CASE OF:	  

		BOARD DATE:	    15 May 2012

		DOCKET NUMBER:  AR20120005666 


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 a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 22 April 2004 from the Restricted section of his Official Military Personnel File (OMPF).

2.  He states his commanding officer withdrew the DA Form 2627 and no punishment was imposed.  This document should not have been filed in his OMPF.  

3.  He provides a copy of the DA Form 2627, dated 22 April 2004. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on the date of his application to this Board, he was serving on active duty, in the grade of staff sergeant/E-6, at Fort Lee, VA.

2.  On 22 April 2004, while serving in the grade of sergeant/E-5 in Iraq, the applicant was administered punishment, under the provisions of Article 15, UCMJ, for the following offenses which occurred on 16 April 2004:  

* dereliction in the performance of duty by losing control of his military equipment
* disobeying a lawful order to keep equipment within arm's reach
* making a false official statement to a superior that his equipment was only unsecure for 10 minutes

3.  The DA Form 2627 shows the applicant did not demand trial by court-martial and requested a closed hearing.  He did not request the presence of a person to speak on his behalf and he did not appeal the Article 15.  This form also shows that no punishment was imposed and the administering commander directed the DA Form 2627 be filed in the Restricted section of the applicant's OMPF.  

4.  A review of his OMPF in the Interactive Personnel Electronic Records Management System (iPERMS) shows the DA Form 2627 dated 22 April 2004 is filed in the Restricted section.  There are no other documents filed in his OMPF which show that the Article 15 in question was withdrawn or the charges were dismissed. 

5.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 pertains to Article 15, UCMJ.  It states that the decision whether to file a record of nonjudicial punishment (NJP) in the Restricted section of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  

   a. Paragraph 3-37b (2) states that for Soldiers, in the rank of sergeant/E-5 and above, the original of the DA Form 2627 will be sent to the appropriate custodian for filing in the OMPF.  The filing decision of the imposing commander is final, subject to review by superior authority.

   b.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP from the OMPF.  It states that application for removal of an Article 15 from a Soldier's OMPF 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.

6.  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. 

7.  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.

   a.  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.

   b.  Paragraph 2-3 (Composition of the OMPF) 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 (i.e., for enlisted Soldiers, formerly designated as Headquarters, U.S. Army Enlisted Records and Evaluation Center) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to remove the DA Form 2627 in question from the Restricted section of his OMPF was carefully considered.  

2.  The evidence shows the applicant was afforded all required due process in connection with his Article 15 proceeding.  The evidence also shows that the 
DA Form 2627 was filed as directed by the officer who administered the NJP.  The DA Form 2627 was appropriately filed as directed in his OMPF and the applicant did not appeal.  

3.  The fact that his commander decided not to render any additional punishment along with the NJP does not render the Article 15 void or prohibit filing in the prescribed location.  His records are absent of documentation and he has not provided any evidence to show that the DA Form 2627, dated 22 April 2004 was withdrawn at anytime.  

4.  Applicable regulations state that, once a document has been directed for filing in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority and there are no provisions for the removal of a DA Form 2627 from a Soldier's OMPF.
5.  The Restricted section of the applicant's OMPF, in which the Article 15 is filed, is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information is strictly controlled and will not be released without written approval from the Commander, Human Resources Command, or the HQDA selection board proponent.  

6.  Therefore, it is concluded that the DA Form 2627 is properly filed, and clear and compelling evidence has not been submitted that would serve as a foundation to support the total removal of the DA Form 2627 from the Restricted section of the applicant's OMPF.  

7.  In view of the foregoing, he is not entitled to the relief requested. 

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)                                         AR20120005666





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ABCMR Record of Proceedings (cont)                                         AR20120005666



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