BOARD DATE:	  23 April 2013 

		DOCKET NUMBER:  AR20130000911 


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, in effect, removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 23 March 2009, from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

2.  The applicant states his request to have this document removed from his AMHRR is due to the upcoming Sergeant First Class (SFC)/E-7 promotion selection board.  He states in 2009, while serving as a recruiter, he received an Article 15 for having an inappropriate relationship with another recruiter in the same office.  She is now his wife of 4 years and they have two beautiful children. His wife is no longer in the Army, but he is continuing his career.  He has served for nearly 16 years and has been ready for the next level.  However, he believes the Article 15 is hampering him from making the SFC promotion list.  He's had great Noncommissioned Officer Evaluation Reports (NCOER) and served as a Platoon Sergeant during Operation Enduring Freedom (OEF).  He believes and knows he is an outstanding NCO and works greatly with Soldiers.  He has learned his lesson and there was no harm intended in his offense.

3.  The applicant provides the contested Article 15.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) NCO who initially enlisted in the RA on 26 June 1997.  He served through a series of reenlistments 

in various staff/leadership positions within and outside the continental United States.  He holds military occupational specialty 19K (Armor Crewman) and he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 October 2003.  At the time of his Article 15, he was assigned to the U.S. Army Recruiting Battalion, Nashville, TN, as a recruiter.

4.  On 23 March 2009, in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for violating a lawful general regulation, to wit:  Army Regulation 600-20 (Army Command Policy), by wrongfully engaging in an inappropriate relationship with sergeant (SGT)/E-5
V-----e F-----r, in violation of Article 92, UCMJ.

5.  His punishment consisted of:

* reduction to SGT/E-5, suspended to be automatically remitted if not vacated before 1 August 2009
* forfeiture of $1,406.00 per month for 2 months, suspended to be automatically remitted if not vacated before 1 August 2009
* 45 days of extra duty

6.  The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's AMHRR.  The applicant did not demand trial by court-martial and elected not to appeal his punishment.

7.  A review of his AMHRR reveals the DA Form 2627 is in fact filed in the performance section of his AMHRR.  Evidence also shows he married
V-----e F-----r shortly after receiving the Article 15 and they are still married.

8.  His record shows that since his incident in March 2009, he accomplished the following:

* awarded the Bronze Star Medal for meritorious service during OEF
* awarded the Army Commendation Medal for outstanding achievement during OEF
* awarded the Army Achievement Medal for outstanding achievement
* awarded the North Atlantic Treaty Organization (NATO) Medal for service with NATO in relation to the International Security Assistance Force Operation in Afghanistan
* awarded the Combat Action Badge for being engaged in active ground combat in Afghanistan
* 
received multiple NCOERs wherein he was rated mostly successful or excellent and among the best by his rater and received a successful overall performance and superior rating by his senior rater
* all senior rater comments noted unlimited potential and recommended immediate promotion and attendance of the Advanced NCO Course

9.  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.  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 3-6 addresses the filing of an 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.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states to support a request for transfer, the person must submit substantive evidence that the intended purpose of the Article 15 has been served and that transfer of the record is in the best interest of the Army.

10.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.  Folders and documents previously authorized for filing in any part of the AMHRR will remain in the AMHRR.  The AMHRR is an administrative record as well as the official permanent record of military Service belonging to a Soldier.  The AMHRR is the historical and authoritative source for authentication of veteran or Service-related benefits, entitlements, and services.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, an SSG, violated the UCMJ and subsequently accepted NJP on 23 March 2009.  With the exception of
45 days of extra duty, the imposing commander suspended all other punishment and directed this Article 15 be filed in the performance section of his AMHRR.  He elected not to appeal his punishment.

2.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the performance section of his OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show that the DA Form 2627 is untrue or unjust.  

3.  Nevertheless, since he received his Article 15 he has revealed nothing but a progressively noteworthy advancement both in achievements and maturity.  He has proven through performance that he is dedicated to bettering himself and generating a positive influence on those with whom he associates.  His attitude, which is normally recognized as a major ingredient in the success or achievement of an individual, is that of an NCO who despite the set-back has Soldiered on with a strong desire to serve and grow.

4.  In view of the foregoing, it is clear that the applicant has learned from his previous mistake and the Article 15 has served its intended purpose.  Therefore, in the interest of justice, the applicant's Article 15 should be transferred to the restricted section of his AMHRR.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x_  ____x____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the contested Article 15 and any allied documents from the performance section to the restricted section of his AMHRR.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the contested Article 15 from his AMHRR.



      __________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)                                         AR20130000911



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ABCMR Record of Proceedings (cont)                                         AR20130000911



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