IN THE CASE OF:	  

		BOARD DATE:	    17 January 2013

		DOCKET NUMBER:  AR20120015630 


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, UCMJ (Uniform Code of Military Justice)), dated 25 February 2011, that is filed in the performance section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File, and reinstatement of his rank.

2.  The applicant states he was assigned to the Armed Forces Recruiting Office in Gainesville, Florida.

   a.  He was involved in a vehicle accident and reported it to the station commander.  During the investigation, he provided all the documentation he had to the leadership in the office.  However, he was not informed of his rights when he was questioned by the station commander (Captain Keith M---) about the accident.  The interview was witnessed by First Sergeant Matthew K----.

   b.  The commander recommended a field grade Article 15 with reduction from staff sergeant (SSG)/pay grade E-6 to sergeant (SGT)/pay grade E-5.  At the time, he was eligible for consideration by the Fiscal Year 2011 Sergeant First Class (SFC) Promotion Selection Board.

   c.  There were numerous Soldiers under CPT M---'s leadership who committed more serious offenses than what he was accused of, but the station commander did nothing to prevent them from being promoted.

   d.  He has been in the U.S. Army for 17 years and is struggling to get promoted to SSG/E-6.  He adds that the circumstances surrounding the incident should be investigated, the Article 15 removed from his records, and his rank restored with promotion to SFC/E-7.

3.  The applicant provides copies of the following documents:

* DA Form 2627
* DA Form 2627-2 (Record of Supplemental Action Under Article 15, UCMJ)
* three email messages
* a newspaper article
* Enlisted Record Brief
* two DA Forms 1059 (Service School Academic Evaluation Reports)
* Recruiter Incentive Award
* two DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports (NCOERs))
* Military Personnel (MILPER) Message Number 11-096

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 11 July 1995.  He was awarded military occupational specialty 92A (Automated Logistical Specialist).

2.  The applicant continued to serve on active duty and was promoted to 
SGT/E-5 on 1 July 2000.  

3.  A review of the applicant's AMHRR maintained in the interactive Personnel Electronic Records Management System (iPERMS) revealed the following:

   a.  A DA Form 2627, dated 24 February 2003, imposed as punishment for his misconduct on 16 November 2002 (i.e., of failing to physically control a passenger vehicle while under the influence of alcohol) is filed in the restricted section of the applicant's record.  His punishment was reduction to grade E-4, forfeiture of $456.00, 45 days of extra duty, and 45 days of restriction.

   b.  The applicant was promoted to:
   
* SGT/E-5 on 1 February 2004
* SSG/E-6 on 1 September 2005

   c.  He reenlisted on 23 December 2005 for an indefinite period.


   d.  A DA Form 2627, imposed as punishment for his misconduct on
1 December 2010 (i.e., of being derelict in the performance of his duties by failing to report a government vehicle accident), is filed in the performance section of the applicant's record.  The DA Form 2627 also shows:

    	(1)  The applicant was advised of his rights and afforded the opportunity to consult with counsel.

    	(2)  The applicant did not demand a trial by court-martial.  He requested a closed hearing and a person to speak in his behalf.  He also indicated that matters in defense, mitigation, and/or extenuation would be presented in person.

    	(3)  On 25 February 2011, in a closed hearing, having considered all matters presented, Lieutenant Colonel Daniel E. O-----, Commander, Jacksonville Recruiting Battalion, Jacksonville, FL, found the applicant was guilty of the misconduct.

    	(4)  His imposed punishment was reduction to SGT/E-5 and forfeiture of $1,482.00 pay for 1 month (suspended, to be automatically remitted if not vacated before 17 August 2011).  Item 5 shows the imposing authority directed that the DA Form 2627 be filed in the performance section of the applicant's AMHRR.

    	(5)  The applicant indicated that he would appeal the nonjudicial punishment (NJP) and submit additional matters.  (No additional matters regarding the applicant's appeal are filed in his AMHRR.)

    	(6)  On 21 March 2011, Colonel Dennis A. K----, Commander,
2nd Recruiting Brigade, denied the applicant's appeal.

    	(7)  A DA Form 2627-2, dated 2 May 2011, remitted the punishment of forfeiture of $1,482.00 pay per month for 1 month. 

    	(8)  The DA Form 2627 is filed in the performance section of the applicant's AMHRR.  The DA Form 2627-2 is filed in the restricted section of his AMHRR; the allied documents are not filed in his AMHRR.

   e.  The applicant was promoted to SSG/E-6 on 1 September 2012.

4.  In support of his application, the applicant provides the following documents:

   a.  email messages from the applicant to his former battalion and station commanders, dated 1 and 26 March 2012, requesting their intervention in reducing the previous punishment imposed by NJP and promotion/restoration of his grade.  On 6 and 26 March 2012, his former station commander responded that promotion to SSG is conducted at the battalion level; he should discuss the matter with his current chain of command; and that it was inappropriate for him to continue to petition his former battalion commander regarding the NJP;

   b.  a newspaper article published by The Gainesville Sun on 23 April 2011 that shows Terrance R----, an Army recruiter, was arrested on a child abuse charge on the evening of 22 April 2011;

   c.  two DA Forms 1059 that show he completed the:

* Automated Logistical Specialist Basic NCO Course on 6 April 2007
* Automated Logistical Specialist Advanced NCO Course on 19 March 2009

   d.  U.S. Army Recruiting Battalion, Jacksonville, FL, memorandum, dated
26 August 2010, that shows the applicant was awarded the Gold Recruiter Badge with Three Sapphire Achievement Stars;

   e.  An NCOER covering the period 8 September 2009 through 7 September 2010 that shows in Part IV (Values/NCO Responsibilities) the rater placed an "X" in the:

* "Excellence" block for:

* Competence
* Training

* "Success" block for:

* Physical Fitness and Military Bearing
* Leadership
* Responsibility and Accountability

    	(1)  The rater evaluated the applicant's potential for promotion and/or service in positions of greater responsibility as "Fully Capable."

    	(2)  The senior rater evaluated his overall potential as "Successful" (Block 2 of 3) and his overall potential for promotion as "Superior" (Block 1 of 3).


   f.  An NCOER covering the period 7 September 2010 through 21 January 2011 that shows in Part IV the rater placed an "X" in the:

* "Excellence" block for:

* Competence
* Leadership

* "Success" block for:

* Physical Fitness and Military Bearing
* Training

    	(1)  Part IV, item f (Responsibility and Accountability), shows the rater placed an "X" in the "Needs Improvement" block and entered the comment, "Failed to report an accident of a government-owned vehicle; did not take responsibility for his actions."

    	(2)  The rater evaluated the applicant's potential for promotion and/or service in positions of greater responsibility as "Fully Capable."

    	(3)  The senior rater evaluated his overall potential as "Successful" (Block 3 of 3) and his overall potential for promotion as "Superior" (Block 3 of 3).

   g.  MILPER Message Number 11-096, issued 25 March 2011, that shows (in part): 

   	(1)  the Army retention control points (RCP) for:

* SGT/E-5 - 13 years total active service
* SGT/E-5 (promotable) - 15 years total active service
* SSG/E-6 - 20 years total active service

    	(2)  Paragraph 7 provides, "Soldiers serving on an indefinite reenlistment, who exceed their RCP (as noted in this message) as the result of a reduction in grade or removal from promotion list (either voluntary or involuntary), may serve on active duty until the RCP for the lower grade or minimum retirement eligibility, whichever occurs later, unless separated earlier under applicable administrative, physical disability, or UCMJ separation provisions.

5.  In the processing of this case, an advisory opinion was obtained from the Chief, Department of the Army Promotions, U.S. Army Human Resources Command (HRC), Fort Knox, KY.
	a.  The advisory official recommends disapproval of the applicant's request for removal of the Article 15 from his AMHRR.

   b.  The advisory official stated the applicant was legally reduced under Article 15, UCMJ, which he signed on 11 February 2011.  He appealed the decision and his appeal was denied on 21 March 2011.

   c.  He added that, to support removal of NJP from the military personnel file, the applicant must demonstrate error or injustice to a degree justifying removal, which this case does not.

6.  On 3 December 2012, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  To date, the applicant has failed to provide a response.

7.  Army Regulation 600-8-104 (AMHRR) provides policies, operating tasks, and steps governing the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of six sections:  performance, service, restricted, medical, other, or State/Territory.  Once placed in the AMHRR, the document becomes a permanent part of that file.

	a.  Table B-1 (Authorized Documents) provides guidance for filing the
DA Form 2627.  The DA Form 2627 will be filed in either the performance or restricted section of the AMHRR, as directed by item 4 of the DA Form 2627; allied documents will be filed in the restricted section of the AMHRR.

	b.  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 may not be released without written approval from the Commander, HRC or the Headquarters, Department of the Army, selection board proponent.  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.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  Once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  

9.  Army Regulation 27-10 (Military Justice), Chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.

   a.   Paragraph 3-43 (Transfer or removal of records of NJP) provides that enlisted Soldiers (E-5 and above) and officers may petition the Department of the Army Suitability Evaluation Board for transfer of records of nonjudicial punishment from the performance to the restricted section of the AMHRR.  To support the request, the person must submit substantive evidence that the intended purpose of the Article 15 has been served and that the transfer is in the best interest of the Army.
   
   b.  Paragraph 3-43, subparagraph e, states that Army Regulation 15-185 contains policy and procedures for applying to the ABCMR and for the correction of military records by the Secretary of the Army.  Requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted.  Absent evidence to the contrary, a properly completed, facially valid DA Form 2627 will not be removed from a Soldier's record by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 25 February 2011, filed in the performance section of his AMHRR (and all allied documents) should be removed from his AMHRR and his rank of SSG/E-6 restored with promotion to SFC/E-7 because the NJP was improperly imposed and without him having been informed of his rights.

2.  The evidence of record shows the NJP was properly administered, the applicant was advised of his rights, he presented matters on his behalf in a closed hearing, and his appeal was considered (and denied) by the proper authority.
	
	a.  The DA Form 2627 is properly filed in the performance section of his AMHRR.

   b.  The applicant provides no substantiating documentation in support of his contention that the NJP was improperly or unjustly imposed.
   
   c.  He provides insufficient evidence in support of his request for restoration of his rank or promotion to SFC/E-7.

3.  There is no evidence of record that he was recommended for or promoted to SFC/E-7.  In addition, based on the evidence of record, there is no basis for retroactively restoring the applicant to pay grade E-6.

4.  Records show the applicant was promoted to SSG/E-6 on 1 September 2012.

5.  The governing regulation provides that the commander must weigh 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.  The commander who imposed the NJP against the applicant directed the DA Form 2627 be filed in the performance section of the applicant's AMHRR.  In this instance, the interests of the Army are compelling when the record of NJP reflects a lack of integrity.  Therefore, there is insufficient basis for transferring the DA Form 2627 to the restricted section of his AMHRR.

6.  By regulation, in order to remove a DA Form 2627 from the AMHRR, there must be compelling evidence to support its removal.  The applicant's service since imposition of the NJP is acknowledged.  However, the applicant failed to submit evidence of a compelling nature to show that the DA Form 2627 that is filed in his AMHRR is untrue, in error, or unjust.  Therefore, the DA Form 2627, dated 25 February 2011, along with the DA Form 2627-2, dated 2 May 2011, are deemed to be properly filed and should not be removed from the applicant's AMHRR.

7.  In view of all of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120015630



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ABCMR Record of Proceedings (cont)                                         AR20120015630



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