BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120017894 


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 28 May 2002, from the restricted section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.

2.  The applicant states:

* it has been 10 years since the incident
* he continued to soldier on and he had been a stellar Soldier with no incidents
* the Article 15 is a discriminator for promotion
* he would like to apply for the Drill Sergeant Program, but he can't do so with an Article 15 in his records
* he was selected for this program three times, but in each case the assignment was cancelled because he failed the background check due to the Article 15

3.  The applicant provides:

* Enlisted Record Brief
* four letters of recommendation
* noncommissioned officer reports (NCOER)


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 October 1998 and is currently serving as an infantry staff sergeant (SSG)/E-6.  He has served in various staff and leadership positions within and outside the continental United States.

2.  He was promoted to specialist/E-4 on 1 September 2000 and to sergeant (SGT)/E-5 on 12 April 2002.  At the time, he was assigned to the 2nd Squadron, 11th Armored Cavalry Regiment, Fort Irwin, CA.

3.  On 28 May 2002 while holding the rank/grade of SGT/E-5 and serving as a team leader, he accepted nonjudicial punishment (NJP) in a closed hearing under the provisions of Article 15 of the UCMJ for assaulting a private by striking him and choking his neck.  His punishment consisted of a suspended reduction to E-4, a suspended forfeiture of pay, and extra duty and restriction.  The imposing commander directed filing the original DA Form 2627 in the restricted section of the applicant's AMHRR.  He elected not to appeal his punishment.

4.  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.

5.  Since this incident, the applicant has accomplished the following:

* served in Alaska from May 2004 to June 2007, Kuwait/Iraq from August 2005 to November 2006, and Korea from January to December 2010
* reenlisted in October 2004 and October 2008
* received multiple awards and decorations, most notably the Army Commendation Medal (4th Award), Army Achievement Medal (6th Award), and Combat Infantryman Badge
* was promoted to SSG/E-6 on 1 July 2005
* received multiple NCOER's that rated him among the best and/or superior

6.  He submitted four letters of recommendation from various commissioned officers and a sergeant major.  They all comment on his outstanding performance, stellar leadership abilities, professionalism, excellent trainer techniques, and knowledge.  The authors all recommended his entry in the Drill Sergeant Program.

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 SGT 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 SGT or higher that have not been wholly set aside and recorded in the restricted section.

	c.  Paragraph 3-43 contains guidance for 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 states that there must be clear and compelling evidence to support 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.  Army Regulation 600-8-104, 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 in a leadership position and subsequently accepted NJP on 28 May 2002 for assaulting another Soldier.  The imposing commander directed filing the Article 15 in the restricted section of the applicant's AMHRR.

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.

3.  His stellar performance as confirmed by his promotion, reenlistments, awards, evaluations, and deployment are noted.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated 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 of the AMHRR.  It appears the imposing officer considered all circumstances at the time and ordered filing the Article 15 in the restricted vice the performance section of the applicant's AMHRR.

4.  In order to remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust.  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 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)                                         AR20120017894



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ABCMR Record of Proceedings (cont)                                         AR20120017894



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