IN THE CASE OF:	  

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120021179 


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 that a DA Form 2627 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]) dated 12 July 2007 be transferred from the performance section to the restricted section of his official records or removed in its entirety. 

2.  The applicant states there is no error or injustice but he was unaware that he could request to have the DA Form 2627 transferred to the restricted section of his official records.  He goes on to state that it was his first and only punishment that he received in 8 years of service and he feels it may hinder his ability to attain Federal employment. 

3.  The applicant provides no additional documents with his application.

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 enlisted in the Regular Army on 9 September 1999.  He completed his one-station unit training as an infantryman at Fort Benning, Georgia and was transferred to Fort Carson, Colorado for his first assignment.

3.  He served a tour of duty in Germany and deployed to Afghanistan during the period of 20011215 – 20020706.  He deployed to Iraq during the period of 20030403 – 20030905 and 20040215 – 20041029.

4.  On 12 July 2007, while stationed at Fort Benning in the pay grade of E-6, nonjudicial punishment (NJP) was imposed against the applicant for the unlawful sale of small arms protective plates, the property of the U.S. Government, a value of $1,003.58.  The applicant sold the plates through EBAY.  He did not demand trial by court-martial and did not appeal his punishment.  The imposing commander directed that the DA Form 2627 be filed in the performance section of his Official Military Personnel File.

5.  On 14 October 2007, the applicant was honorably discharged due to completion of required service.  He had served 8 years, 1 month and 6 days of active service.

6.  There is no evidence in the available records to show that he applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the DA Form 2627 transferred to the restricted section of his official records.

7.  Army Regulation 27-10 (Military Justice) provides that the decision to file DA Forms 2627 in the performance or restricted section of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander is final and is indicated in item 5 of the DA Form 2627.

8.  Paragraph 3-6 of Army Regulation 27-10 provides guidance for the filing determination for the DA Form 2627 and associated documents.  It states that the restricted section of the OMPF is that portion of the OMPF that contains information not normally viewed by career managers or selection boards.  

9.  Army Regulation 27-10 enlisted Soldiers (E-5 and above) and officers may petition the DASEB for transfer of records of NJP from the performance to the restricted portion of the OMPF.  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.
10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) serves as the authority for the filing and release of documents authorized for filing in the OMPF.  It states that the restricted section is used for historical data that may normally be improper for viewing by selection boards or career managers.  Documents in this section are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, corrections to other parts of the OMPF, record investigation reports, to record appellate actions, and to protect the interest of the Soldier and the Army.  The release of information on this fiche is controlled and will not be released without written approval from the Commanding General, U.S. Army Human Resources Command, or the Headquarters, Department of the Army, selection board proponent.

DISCUSSION AND CONCLUSIONS:

1.  The record of NJP is properly filed in the performance sections of his OMPF as directed by the imposing commander and there appears to be no valid reason to remove it.

2.  By the applicant’s own admission there is no error or injustice and the Board does not approve requests to alter duly constituted records simply for the purpose of improving an individual’s employment prospects.

3.  Unfortunately, the applicant was separated shortly after receiving the NJP.  Therefore, there is insufficient evidence to show that its intended purpose had been served and, accordingly, there appears to be no basis to grant his request to transfer his DA Form 2627.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20120021179





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ABCMR Record of Proceedings (cont)                                         AR20120021179



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