IN THE CASE OF:	  

		BOARD DATE:	    5 July 2012

		DOCKET NUMBER:  AR20120009202 


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, in effect, removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), he received on 22 December 1994, from the performance (P) portion of his official military personnel file (OMPF) or its transfer to the restricted (R) portion of his OMPF.

2.  The applicant states:

	a.  He has a field grade Article 15 from 1994 filed in the P portion of his OMPF.  He would like to have it expunged or at the very least its transfer to the R portion of his OMPF.

	b.  This Article 15 has served its purpose and he has learned from his mistakes.  He regrets the mistake that he made so many years ago.  Since returning to active duty, everyday he has lived up to the Army Values and standards.  The Article 15 being in his open records may cause problems with promotion and future career advancements in his Army career.  He believes this could cause a great hindrance to himself and his family.

3.  The applicant provides copies of two DA Forms 2627 he received on 22 June and 22 December 1994.

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's military records show he enlisted in the Regular Army (RA) in pay grade E-1 on 26 April 1989, for 4 years.  He reenlisted on 9 October 1992.  He was promoted to the rank of sergeant, pay grade E-5, on 1 February 1993. 

3.  On 22 June 1994, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for unlawfully striking a Soldier in the eye on 5 April 1994.  This Article 15 is filed in the R portion of his OMPF.

4.  On 22 December 1994, he accepted NJP under Article 15, UCMJ, for committing an assault upon two Soldiers intentionally inflicting bodily harm upon them on 10 November 1994.  His punishment included reduction to pay grade 
E-4 and forfeiture of $620.00 pay for one month, suspended, to be automatically remitted if not vacated on or before 21 June 1995, and 45 days extra duty.  He elected to appeal the punishment, but his appeal was denied.  This Article 15 is filed in the P portion of his OMPF.

5.  He was discharged from active duty on 24 March 1995.

6.  After a break in service, he enlisted in the RA, in pay grade E-3, on 19 September 2007.  He completed the following courses:

* 23 January 2008 - ADA (Air Defense Artillery) C41 TOC (Tactical Operations Center) System Operator/Maintainer
* 03 April 2008 - ADA C41 TOC HIMAD (High-to-Medium Altitude Air Defense) Systems Operator/Maintainer
* 20 September 2011 - Information and Technology Specialist ALA (American Library Association) CL 016-11

7.  He was promoted to the rank of staff sergeant, pay grade E-6, on 27 March 2009.

8.  He received ratings of Among the Best and Successful from 1 October 2008 through 31 May 2011.  He reenlisted in the RA for an indefinite period on 1 March 2012.

9.  Army Regulation 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice.  Chapter 3 specified that nonjudicial punishment was imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP could be 
set aside, removed, or changed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  DA Form 2627 would be used to record all action taken under Article 15 and prepared in an original and 3 copies.  The original would be permanently filed in the OMPF.  

10.  Army Regulation 27-10, paragraph 3-43, specified that enlisted Soldiers (sergeant and above) could request the transfer or a record of NJP from the P portion of their OMPF to the R portion under that regulation.  The person must submit substantive evidence that the intended purpose of the Article 15 had been served and the transfer of the record was in the best interest of the Army.  Application for removal of an NJP from a Soldier's OMPF based on an error or injustice would be made to the ABCMR and there must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the removal of a DA Form 2627 which was properly filed in his OMPF.  

2.  The evidence of record shows the applicant accepted punishment under Article 15 of the UCMJ, on 22 December 1994, for committing an assault upon two Soldiers.  

3.  He has not provided convincing evidence that the DA Form 2627 is untrue or unjust, in whole, or in part, to support his request for removal from his OMPF.  By regulation, there must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record.  Absent such evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removing the document in question from the applicant’s OMPF.  

4.  Although he did not provide any supporting statements from his current chain of command, it has been over 18 years since this Article 15 was rendered.  A review of his record revealed no other derogatory information subsequent to 1994.  He was discharged in 1995 and after a break in service he enlisted in 2007, successfully completed 3 courses, was rated Among the Best and Successful from 2008 through 2011, and reenlisted on 1 March 2012 for an indefinite period.  Regulatory guidance provides for transfer of NJP upon proof that the intended purpose has been served or that the transfer would be in the best interest of the Army.  

5.  Therefore, it appears the punishment has served its intended purpose.  In the interest of justice, it would be appropriate to transfer the DA Form 2627 he received on 22 December 1994 from the P portion to the R portion of his OMPF.  

6.  This action is not to be considered retroactive and, therefore, does not constitute grounds for promotion reconsideration if previously non-selected.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 the applicant received on 22 December 1994 from the performance to the restricted portion of his official military personnel file
* filing all associated appeal documents in the restricted portion of his official military personnel file
* this action is not to be considered retroactive and, therefore, does not constitute grounds for promotion reconsideration if previously non-selected

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to removing the DA Form 2627 he received on 22 December 1994 in its entirety from his official military personnel file.



      _______ _   _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)                                         AR20120009202





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ABCMR Record of Proceedings (cont)                                         AR20120009202



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