IN THE CASE OF:	  

		BOARD DATE:  24 May 2012

		DOCKET NUMBER:  AR20120005758 


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 a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 8 June 2011 be removed from the restricted section of his official military personnel file (OMPF).

2.  The applicant states:

	a.  On 16 March 2011, he enrolled (self-referred) in the Army Substance Abuse Program (ASAP) for abuse of "bath salts" (a mind altering substance).  He informed his command of his enrollment in ASAP but later that day his chain of command requested a field grade Article 15 for violation of Article 92 for the use of bath salts.

	b.  He sought legal advice and was told there was nothing he could do but accept the punishment.  On 8 June 2011, he was reduced from sergeant to specialist.  He decided to seek alternate legal counsel and was informed the UCMJ proceedings were not legitimate because he had self-enrolled in ASAP and was not command referred.  A Judge Advocate General (JAG) lieutenant colonel called his battalion commander and advised him of the policy that protected the applicant from UCMJ action.  His battalion commander agreed to set aside the punishment and revoked the Article 15 which reinstated his original date of rank to sergeant.



	c.  Unfortunately the Article 15 was moved to the restricted section of his OMPF and he wants it removed promptly.  His chain of command, including his battalion commander, and JAG agree these proceedings need to be removed from any and all OMPF records.

3.  The applicant provides:

* DA Form 2627
* DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Amy on 15 September 2004.  He has remained on active duty through continuous reenlistments.  He attained the rank of sergeant on 9 January 2009. 

2.  He enrolled himself in ASAP on 21 March 2011 for use of "bath salts."

3.  A DA Form 2627, dated 8 June 2011, shows nonjudicial punishment (NJP) was imposed against the applicant for violating a lawful general regulation (by using bath salts).  His punishment consisted of a reduction to specialist and a forfeiture of pay (suspended).  The issuing commander directed that the original DA Form 2627 be filed in the restricted section of his OMPF.  

4.  A DA Form 2627-2, dated 24 January 2012, shows the applicant's Article 15 was set aside on the basis of the limited use policy.  

5.  A review of the restricted section of his OMPF on the Interactive Personnel Electronic Records Management System revealed a copy of the DA Form 2627, dated 8 June 2011.  The DA Form 2627-2 is not contained in his OMPF.

6.  Paragraph 3-43 of Army Regulation 27-10 (Military Justice) contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states, in pertinent part, that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (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.




7.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), currently in effect, prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides:

* a DA Form 2627 will be filed in the performance or restricted section of the OMPF as directed by the issuing commander (item 5 on DA Form 2627)
* if an Article 15 is wholly set aside and is filed on the performance fiche, move it to the restricted fiche
* file the DA Form 2627-2 directing the action on the restricted fiche
* if an Article 15 is filed on the restricted fiche, also file the DA Form 2627-2 setting it aside on the restricted fiche
* allied documents accompanying the Article 15 will be filed in the restricted section     

8.  Paragraph 7-3 of Army Regulation 600-85 (The ASAP) states normally Soldiers with an alcohol or other drug problem should seek help from their unit commander; however, they may initially request help from their installation ASAP, a Military Treatment Facility, a chaplain, or any officer or noncommissioned officer in their chain of command.  If a Soldier initially seeks help from an activity or individual other than his or her unit commander, the individual contacted should immediately notify the Soldier’s unit commander and installation Alcohol and Drug Control Officer.  The limited use policy will apply when Soldiers seek help from any of the listed personnel or organizations.

9.  Army Regulation 600-85 defines limited use as:  Protection from the use of certain information, determined to be confidential by Federal regulation, to support disciplinary action under the UCMJ or administrative separation with a less than honorable discharge.

10.  "Bath salts" are highly addictive, designer drugs containing Mephedrone and Methylenedioxypyrovalerone (MDPV).  Mephedrone and MDPV are stimulants that act much like Methamphetamine and Cocaine, but produce the added effect of hallucinations.  “Bath salts” are known by many street names and are widely available on the internet, and in local convenience stores and smoke shops. “Bath salts” are snorted, injected, or smoked primarily by teens and young adults.






DISCUSSION AND CONCLUSIONS:

1.  Evidence shows:

   a.  The applicant enrolled himself in ASAP on 21 March 2011 for abuse of bath salts. 

   b.  NJP was imposed against him on 8 June 2011 for violating a lawful general regulation for using bath salts and the issuing commander directed that the original DA Form 2627 be filed in the restricted section of his OMPF.

   c.  The governing regulation states a DA Form 2627 will be filed in the performance or restricted section of the OMPF as directed by the issuing commander (item 5 on DA Form 2627).

d.  The DA Form 2627 was placed in the restricted section of his OMPF.

   e.  His NJP was set aside on 24 January 2012 on the basis of the limited use policy. 

   f.  The governing regulation also states if an Article 15 is filed on the restricted fiche also file the DA Form 2627-2 setting it aside on the restricted fiche.

2.  The NJP was set aside on 24 January 2012 on the basis of the limited use policy.

3.  Although the DA Form 2627 imposed on 8 June 2011 was properly filed in the restricted portion of the applicant’s OMPF in accordance with the governing regulation, the applicant was protected under the limited use policy since he enrolled himself in the ASAP prior to his disciplinary action under the UCMJ.

4.  Based on the foregoing, as a matter of equity, the DA Form 2627 should be removed from the restricted section of his OMPF.  In addition, the DA Form 2627-2 should not be filed in the restricted section of his OMPF either. 



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:

   a.  Removing the DA Form 2627 imposed on 8 June 2011 from the restricted section of his OMPF; and
   
   b.  Not filing the DA Form 2627-2, dated 24 January 2012, in the restricted 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)                                         AR20120005758



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ABCMR Record of Proceedings (cont)                                         AR20120005758



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