BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120014767 


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 to transfer the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) he received on 3 May 2007 from the performance section of his Army Military Human Resource Record (AMHRR) to the restricted section.  

2.  He states it has been over 5 years since the Article 15 was administered and he has not received any negative actions subsequent to this incident.  Regulatory guidance states, "punishment may be transferred upon proof that its intended purpose has been served" and this punishment has served its purpose.

3.  He adds that his records show he has been a stellar Soldier.  He contends this is the only blemish the board reviewers will see when considering him for promotion to the rank of sergeant first class/E-7 and beyond.

4.  The applicant provides:

* five DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports (NOCER))
* three DA Forms 1059 (Service School Academic Evaluation Report)
* numerous awards and certificates of achievement
* five character reference letters



CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 11 September 1997.  He is currently serving on active duty in the grade of staff sergeant (SSG)/E-6 in military occupational specialty 42F (Human Resource Information System Management Specialist).

2.  The applicant's record contains the DA Form 2627 which was administered in May 2007.  He was charged with violating Article 107, UCMJ on 26 September 2006, by falsifying an official document with intent to deceive.  He held the grade of sergeant (SGT)/E-5 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 AMHRR."  The applicant did not demand trial by court-martial and item 7 does not indicate the applicant's desire to appeal.

4.  A review of his interactive Personnel Records Management System (iPERMS) file shows the DA Form 2627, dated 3 May 2007 was filed twice in the performance section and also filed in the restricted section of his AMHRR.  

5.  Further review of his AMHRR in iPERMS shows a prior DA Form 2627, dated 22 January 2007, is also filed in both sections of his AMHRR.  This 
Article 15 shows the administering officer directed it be filed only in the restricted section of his AMHRR.

6.  His last five NCOERs, ranging in date from 14 February 2007 through 
20 January 2012 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

7.  The applicant also provided three DA Forms 1059 that show he "exceeded" and/or "achieved" the standards and received "superior" ratings in all evaluated areas for the following courses:

* Basic Noncommissioned Officer (NCO) Course – 1 October 2009
* Battle Staff NCO Course – 1 October 2010
* Advanced Leader Course – 15 April 2011

8.  He provided certificates that show he was awarded two Army Commendation Medals, an Army Achievement Medal, The Military Outstanding Volunteer Service Medal, and various other certificates of achievements from June 2007 through January 2011.

9.  The character reference letters the applicant provided collectively show the authors view him as:

* knowledgeable, eager, and motivated
* proud to be a Soldier
* mature and "rock steady" leader
* never retreating from tough assignments
* able to accomplish all tasks
* committed to excellence
* a "go to" Soldier
* an exceptional Soldier and leader
* a technical expert

10.  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.  

   a.  It states that the decision whether to file a record of nonjudicial punishment (NJP) in the performance section of a Soldier's AMHRR rests with the imposing commander at the time punishment is imposed.

   b.  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.

11.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in their individual official personnel files.

   a.  Once a document has been directed for filing in the AMHRR, 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 AMHRR.  The regulation contains provisions for the transfer of a DA Form 2627 from the performance section to the restricted section of the AMHRR; however, there are no provisions for the removal a DA Form 2627 from the AMHRR.

   b.  This regulation 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 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR.  It also prescribes the composition of the AMHRR.  

     a.  It states that once a document is placed in the AMHRR 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.  

     b.  It also states that forms recording punishment imposed after 1 November 1982 are filed in the performance or restricted section of the AMHRR as directed by item 5 of the DA Form 2627.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested to transfer the DA Form 2627, dated 3 May 2007 from the performance to the restricted section of his AMHRR.

2.  The evidence of record confirms he was administered NJP under Article 15, UCMJ, for falsifying an official document with intent to deceive.  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 either the performance or the restricted section of his AMHRR.  Due to the seriousness of the offense, the administering officer, in his discretion, chose to file the DA Form 2627 in the performance section and the applicant did not indicate he appealed the decision.

4.  His record indicates he has performed his duties in an outstanding manner since the administering of the NJP.

5.  The governing regulation authorizes the transfer of an Article 15 from the performance to the restricted portion of the AMHRR 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 that was administered on 3 May 2007 has served its intended purpose.  His record shows two copies of this document are filed in the permanent section of the AMHRR.  It also shows a copy of this document is also filed in the restricted section of his record.  Thus, it would be appropriate to remove the two DA Forms 2627, dated 3 May 2007 and all allied documents from the performance section, while retaining the copy filed in the restricted section of his AMHRR.

7.  Further review of iPERMS shows he has a prior DA Form 2627, dated 
22 January 2007, that was erroneously filed in the performance section of his AMHRR when the administering officer directed it be filed in the restricted section.  As such, it would be appropriate to remove this document from the permanent section, while retaining the copy that is correctly filed in the restricted section of his file.

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:

	a.  removing the two DA Forms 2627, dated 3 May 2007 and all allied documents from the performance section and retaining the copy filed in the restricted section of his AMHRR based on having served its intended purpose; and

	b.  removing the DA Form 2627, dated 22 January 2007 from the performance section and retaining the copy filed in the restricted section of his AMHRR based it being erroneously filed. 




      _______ _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)                                         AR20120014767





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ABCMR Record of Proceedings (cont)                                         AR20120014767



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