IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120016570 


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)), dated 23 July 2007, from his records.

2.  The applicant states the original DA Form 2627 indicated it was not to be filed in either the restricted or performance section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).  However, upon inspection of his interactive Personnel Electronic Records Management (iPERMS) file, he realized a modified version of the original DA Form 2627 was placed in the restricted section.

3.  The applicant provides:

* a self-authored statement, dated 9 August 2012
* 2 copies of his DA Form 2627, dated 23 July 2007
* 2 copies of a DA Form 4856 (Developmental Counseling Form), dated
16 July 2007
* a blank pre-printed memorandum, subject:  Leave (Ordinary/PCS/
Terminal/Emergency); Pass (3 day/4 day/mileage pass) Request)
* Orders 190-273, issued by Headquarters, 1st Infantry Division, Fort Riley, KS, dated 9 July 2007
* DA Form 638 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 11 July 2007
* Enlisted Record Brief (ERB), dated 17 July 2007


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 is currently a Regular Army first lieutenant serving in the Adjutant General Corps who was appointed on 16 May 2009.

3.  On 23 July 2007, while holding the rank/grade of sergeant (SGT)/E-5, and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for:

* failing to go at the time prescribed to his appointed place of duty on
13 and 16 July 2007
* willfully disobeying a lawful command from a commissioned officer on
12 July 2007
* failing to obey a lawful order issued by a commissioned officer on 7 July 2007

4.  His punishment consisted of 7 days of extra duty and restriction to the limits of Fort Riley for 7 days.  The imposing commander directed the original DA Form 2627 be filed in the restricted section of the applicant's AMHRR.  The applicant did not elect to appeal the punishment.

5.  A review of his iPERMS file shows the contested DA Form 2627, together with the allied documents, is filed in the restricted section.

6.  The applicant provides a copy of the DA Form 2627 that shows the imposing commander did not indicate where the original DA Form 2627 was to be filed.

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 3-37b(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.

	c.  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 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.

	a.  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.

	b.  Paragraph 2-3 (Composition of the AMHRR) 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 a SGT and subsequently accepted NJP on 23 July 2007.  The imposing commander directed filing the Article 15 in the restricted section of his 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 section 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.  Although the applicant provides a copy of the DA Form 2627 that does not show where the imposing commander directed it to be filed, it is apparent by the evidence located in the restricted section of the applicant’s AMHRR in iPERMS that the imposing commander directed the contested DA Form 2627 be filed in the restricted section of his AMHRR.

3.  The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, 


historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.

4.  The applicant has not demonstrated the NJP action was unjust or untrue, that this NJP should be removed because of the length of time, or that removal would be in the best interest of the Army.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120016570



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120016570



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1