IN THE CASE OF:	  

		BOARD DATE:  20 November 2012

		DOCKET NUMBER:  AR20120018204 


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 an Article 15 from his records.

2.  The applicant states he was stationed in Korea with the 25th Transportation Battalion.  He was an E-4 when he received the Article 15.  The battalion uploaded it into his performance file.  It should not have been filed. 

3.  The applicant did not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 6 October 2009 and he held military occupational specialty 88N (Traffic Management Coordinator).  

2.  On 26 May 2011, in the rank/grade of SPC/E-4, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for assaulting another Soldier.  His punishment included extra duty and restriction and suspended reduction and forfeiture of pay.  He elected not to appeal his punishment.

3.  Item 4b (filing instructions) of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), regarding the filing of the Article 15 in the performance or the restricted section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File, is shown as "N/A" (Not Applicable) since the applicant was an E-4 and below at the start of the proceedings.

4.  Review of the applicant's interactive Personnel Records Management System (iPERMS) file shows the Article 15 is currently filed in the performance section of his AMHRR.

5.  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.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  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 3-37 states for Soldiers who are at the rank of SPC or corporal (CPL) and below (prior to punishment) the original will be filed locally in unit NJP or unit personnel files.  Such locally-filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 5 of DA Form 2627 as "NA."

	b.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  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.

6.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.  This document states that only those documents listed in Table B-1 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 B-1 shows that the DA Form 2627 is filed in either the performance or restricted section of the AMHRR, as directed in Item 5 (now 4b) of the DA Form 2627.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was a SPC/E-4 at the time he accepted the NJP.  The imposing officer annotated the entry "NA" regarding filing this NJP in the applicant's AMHRR.  For unknown reasons, the Article 15 was filed in the performance section of the applicant's AMHRR.

2.  By regulation, for Soldiers who are at the rank of SPC and below at the start of NJP proceedings, the original will be filed locally in unit NJP or unit personnel files.  Such locally-filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate the entry "NA" in item 5 of DA Form 2627.

3.  While there is no evidence of record to show that the DA Form 2627 is untrue or unjust, its filing is contrary to regulation.  Therefore, this Article 15 together with any allied documents should be expunged from his AMHRR.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 removing the Article 15, dated 26 May 2011, and allied documents from the 

performance section of his AMHRR and to return those documents to this Board for disposition.



      _______ _  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)                                         AR20120018204





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120018204



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1