IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120012988 


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 the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 9 November 2011, from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

2.  The applicant states the Article 15 he received was initially directed to be filed in the performance section of his AMHRR.  However, on appeal, the next higher authority ordered it to be filed in the restricted section of his AMHRR.  He would like it removed.

3.  The applicant provides a copy of the subject Article 15.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a Regular Army infantry staff sergeant (SSG)/E-6 who initially enlisted on 15 January 1997 after having prior enlisted service.  He has served in various staff and leadership positions within and outside continental United States.

2.  On 9 November 2011, while holding the rank/grade of SSG/E-6 and serving as an instructor and squad leader for the Track Vehicle Repairer Course at Aberdeen Proving Ground, MD, and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for being disrespectful to a senior noncommissioned officer (NCO) in language and in deportment on 5 October 2011.

3.  His punishment consisted of 14 days of extra duty (suspended).  The imposing commander directed that the original DA Form 2627 be filed in the performance section of the applicant's AMHRR.

4.  On 9 December 2011, the applicant appealed his punishment to the next higher commander.

5.  On 9 January 2012 after consideration of all matters presented in the appeal, the next higher commander granted relief in that he ordered that the suspended punishment remain in effect but the Article 15 be filed in the restricted section of the applicant's AMHRR.

6.  A review of his AMHRR reveals that the contested DA Form 2627 together with the allied documents is, in fact, filed in the restricted section of his AMHRR.

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial:

	a.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's AMHRR is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-33 states, "In acting on an appeal, the superior authority may exercise the same powers as may be exercised by the imposing commander or the imposing commander's successor-in-command."

	c.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the AMHRR.  The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of sergeant or higher that have not been wholly set aside and recorded in the restricted section.

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states that applications for removal of an Article 15 from the AMHRR 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.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the AMHRR) shows the DA Form 2627 is filed in either the performance or restricted section of the AMHRR, as directed in item 5 of the DA Form 2627.

9.  Paragraph 2-3 (Composition of the AMHRR) of Army Regulation 600-8-104 provides that the restricted section of the AMHRR 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, or the Department of the Army Headquarters selection board proponent.  This paragraph also provides that documents in the restricted section 

of the AMHRR 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 AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant violated the UCMJ while serving as an SSG in a leadership position and subsequently accepted NJP on 9 November 2011 for disrespecting a senior NCO.  The imposing commander directed filing the Article 15 in the performance section of his AMHRR.  However, on appeal, the superior authority ordered it filed in the restricted section of the AMHRR.  This is where the subject Article 15 is currently filed.

2.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted portion of his AMHRR as directed by the imposing commander.  There is no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust.  In order to remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust.

3.  In the absence of an error or an injustice, there is no reason to remove it from his records.

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)                                         AR20120012988



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ABCMR Record of Proceedings (cont)                                         AR20120012988



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