IN THE CASE OF:	  

		BOARD DATE:	 6 December 2012 

		DOCKET NUMBER:  AR20120019847 


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 19 February 2009, that is filed in the restricted section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

2.  The applicant states that the intended purpose of the nonjudicial punishment (NJP) has been served and the commander who imposed it supports his effort to have the NJP removed from his AMHRR.

3.  The applicant provides copies of two award certificates, three training certificates, five DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Reports), his Enlisted Record Brief (ERB), and a letter in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 March 1995.

2.  He is currently serving on active duty in the Regular Army as a staff sergeant (SSG) in military occupational specialty 42A (Human Resources NCO).  He was promoted to SSG effective 1 September 2007.



3.  A review of the applicant's AMHRR shows that a DA Form 2627, dated
19 February 2009, imposed as punishment for his misconduct on 27 October 2008 (i.e., of stealing funds by means of a Selective Reenlistment Bonus of a value of about $1,800.00, the property of the Defense Finance and Accounting Service) is filed in the restricted section of the applicant's record.

4.  The DA Form 2627 also shows:

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

	b.  The applicant did not demand a trial by court-martial.  He requested an open hearing and a person to speak in his behalf.  He also indicated that matters in defense, mitigation, and/or extenuation were attached to the DA Form 2627.

	c.  On 19 February 2009, in an open hearing, having considered all matters presented, the Commander, Armed Forces South Battalion, Istanbul, Turkey, found the applicant was guilty of the misconduct.

	d.  His imposed punishment was forfeiture of $1,000.00 pay for 1 month,
15 days of extra duty, 15 days of restriction, and an oral reprimand.  Item 5 shows the imposing authority directed that the DA Form 2627 be filed in the restricted section of the applicant's AMHRR.

	e.  The applicant indicated that he did not appeal the NJP.

	f.  The DA Form 2627 and allied documents are filed in the restricted section of the applicant's AMHRR.

5.  An NCOER covering the period 1 February 2008 through 31 January 2009 shows in Part IV (Army Values/Attributes/Skills/Actions), item 6 (Integrity:  Does what is right - legally and morally), the rater placed an "X" in the "NO" column and entered the comment, "deceptive in regards to reenlistment location which resulted in the recoupment of an unauthorized bonus."

6.  On 3 April 2012, the applicant submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) for removal of the NJP from the restricted section of his AMHRR.



7.  A DASEB memorandum, dated 12 October 2012, notified the applicant that Army regulation restricts the DASEB's ability to remove the NJP from the AMHRR.  Accordingly, he was advised that the authority to remove the NJP from his AMHRR rests with the Army Board for Correction of Military Records (ABCMR).

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

   a.  two DA Forms 4980-18 (Army Achievement Medal Certificates) that show he was awarded the Army Achievement Medal for meritorious achievement in his selection as the 120th Infantry Brigade's:
   
* S1 of the Quarter for the 4th Quarter, Fiscal Year 2009
* NCO of the Quarter for the 1st Quarter, Fiscal Year 2012

   b.  two Adjutant General School, U.S. Army Soldier Support Institute, Fort Jackson, SC, certificates that show he completed the:

* Postal Operations Course on 13 November 2009
* Postal Supervisor Course on 16 December 2009

   c.  a DA Form 1059 (Service School Academic Evaluation Report) that shows he completed Advanced NCO Course (MOS 42A) on 28 July 2009;

   d.  five NCOERs, covering the period 1 February 2009 through 12 March 2012, that show four raters evaluated his potential for promotion and/or service in positions of greater responsibility as "Among the Best" and one evaluated him as "Fully Capable."  The senior raters all evaluated his overall potential as "Successful" and his overall potential for promotion as "Superior"; and

   e.  a  letter from Colonel Douglas Ray C-----, Chief, European Command, J1 Readiness Division, dated 5 September 2012, that shows he imposed the NJP as the applicant's commander.  He states it was the right thing to do at the time and now it has served its purpose.  He adds that the applicant has put his life and career in order, he has lived the Army Values, he is an asset to his unit and the Army, and the NJP should be removed from the applicant's records in the best interest of the Army and the applicant.

9.  Army Regulation 600-8-104 (Army Military Human Resources Records) 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.

	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 5 of the DA Form 2627.

	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, U.S. Army Human Resources Command (USA 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.

10.  Army Regulation 27-10 (Military Justice) states enlisted Soldiers (E-5 and above) and officers may petition the DASEB for transfer of records of nonjudicial punishment from the performance to the restricted portion 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.

11.  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.

12.  Army Regulation 600-37 states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 19 February 2009 (and all allied documents) filed in the restricted section of his AMHRR should be removed from his AMHRR because the intended purpose has been served.

2.  The evidence of record shows the NJP was properly administered.
	
	a.  The DA Form 2627 (with the allied documents) is properly filed in the restricted section of his AMHRR.

   b.  The applicant acknowledges that the NJP was not imposed in error nor was it unjust.  He now takes full responsibility for his actions.

   c.  The commander who imposed the NJP now recommends removal from the applicant's AMHRR because it has served its purpose, but he does not state that the applicant did not commit the misconduct.

3.  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 restricted (vice 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 (emphasis added).

4.  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 noteworthy.  However, the applicant failed to submit evidence of a compelling nature to show that the DA Form 2627 that is filed in the restricted section of his AMHRR is untrue, in error, or unjust.  Therefore, the DA Form 2627, dated 19 February 2009, is deemed to be properly filed and should not be removed from the applicant's AMHRR.

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)                                         AR20120019847



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ABCMR Record of Proceedings (cont)                                         AR20120019847



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