IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120008345 


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)) he received on 30 January 2008 from his official military personnel file (OMPF).  In the alternative, he requests transfer of the Article 15 to the restricted section of his OMPF.

2.  He states the performance section of the OMPF is routinely used by Headquarters, Department of the Army (HQDA), selection boards to select eligible candidates for promotion.  As such, he believes the presence of the DA Form 2627 contained in this section of his OMPF may be a direct cause of his non-selection during prior HQDA selection boards.

3.  He adds that he has been unsuccessful in being promoted by the last three selection boards for which he was eligible.  If his former commander's intent by filing this document in the performance section of his OMPF was to prevent him from being promoted, he believes the intent has been met on more than one occasion.

4.  He also believes the Army would benefit from either removal or transfer of the DA Form 2627 as it will allow him to be competitive for promotion and would assist the Army with the current shortage of sergeants first class who currently serve in military occupational specialty (MOS) 89B (Ammunition Specialist).  Over the years, he has gained a wealth of institutional and operational knowledge by employing himself and he is ready to tackle positions that encompass much larger scopes of responsibility.

5.  The applicant provides a copy of the DA Form 2627, dated 11 February 2008.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 26 July 2001.  After completion of training, he was awarded MOS 55B (Ammunition Specialist) which later converted to MOS 89B.  He is currently serving on active duty in the rank/grade of staff sergeant (SSG)/E-6.

2.  The applicant's record contains the DA Form 2627 which was administered in January 2008.  This document shows he was charged with violating Article 134, UCMJ, on 21 December 2007 by operating a motor vehicle at a time when his driving privileges were suspended.  He held the rank/grade of SSG/E-6 at the time the Article 15 was administered.

3.  Further review of the DA Form 2627 shows the administering officer placed his initials in item 5 of the form indicating "I direct the original DA Form 2627 be filed in the performance fiche of the OMPF."  The applicant did not demand trial by court-martial.  Item 7 does not indicate the applicant's desire to appeal.

4.  A review of his interactive Personnel Records Management System file shows the DA Form 2627 was filed in the performance section.

5.  His last five DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports (NCOER's)) ranging in date from 10 August 2008 through 27 August 2011 contain no adverse comments:

* Part IV (Army Values/Attributes/Skills/Actions) shows all "Yes" ratings
* Part IV (Values/NCO Responsibilities) shows a mix of "Excellence" and Success" ratings
* Part V-Rater (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows four ratings of "Among the Best" and one rating of "Fully Capable"
* Part V-Senior Rater (Overall Performance) shows a mix of ratings in the "Successful 1" block and "Successful 2" block
* Part V  Senior Rater (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows a mix of ratings in the "Superior 1" block and "Superior 2" block

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

7.  Army Regulation 27-10 further stipulates that, 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 OMPF of those Soldiers in the rank/grade of SGT/E-5 and above.

8.  Army Regulation 27-10, 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 can be made to the ABCMR.  It further states that there must be evidence that demonstrates that an error or injustice occurred.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to:

	a.  authorize placement of unfavorable information about Army members in their individual official personnel files;

	b.  ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files; and

	c.  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 official personnel files.

10.  Army Regulation 600-37, paragraph 7-2, states 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.  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 OMPF.  The regulation contains provisions for the transfer of a DA Form 2627 from the performance section to the restricted section of the OMPF; however, there are no provisions for the removal a DA Form 2627 from the OMPF.

11.  Army Regulation 600-37 also states that 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.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF.  It also prescribes the composition of the OMPF.  Paragraph 2-4 states that once a document is placed in the OMPF 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 OMPF 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 his OMPF or to remove it completely was carefully considered.

2.  The evidence of record confirms he was administered NJP under Article 15, UCMJ, for operating a motor vehicle with a suspended license.  The punishment was administered in accordance with the applicable regulation, all requirements of law were met, and his rights were fully protected throughout the process.

3.  Given his rank at the time, this document had to be filed in the performance or the restricted section of his OMPF.  Due to the seriousness of the offense, the administering officer, in his discretion, chose to file the DA Form 2627 in the performance section of the applicant's OMPF and the applicant did not indicate he appealed the decision.

4.  The evidence of record shows the applicant's overall service since he was administered NJP under Article 15, UCMJ, indicates he has performed his duties in an outstanding manner.

5.  The governing regulation authorizes the transfer of an Article 15 from the performance to the restricted portion of the OMPF 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 his actions and has performed commendably.

6.  It is clear that the Article 15 in question has served its intended purpose.  Thus, it would be appropriate to transfer this document from the performance section to the restricted section of the applicant's OMPF.



BOARD VOTE:

____X___  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 11 February 2008, from the performance section to the restricted section of his OMPF based on 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)                                         AR20120008345



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ABCMR Record of Proceedings (cont)                                         AR20120008345



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