IN THE CASE OF:
BOARD DATE: 22 August 2013
DOCKET NUMBER: AR20130005979
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 transfer of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) from the performance folder to the restricted folder of his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF)).
2. The applicant states, in effect, the DA Form 2627 has served its purpose and should be transferred to the restricted folder of his AMHRR due to intent served. He states he has striven to correct his actions since receiving the nonjudicial punishment (NJP) and has served with professionalism. He also states he has never cheated the Army one minute with his performance and commitment and he holds Army values above all that he does in his life on and off duty.
3. The applicant provides copies of a letter from the Chief of Staff of the Army, noncommissioned officer evaluation reports, education records, and awards.
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. After serving in the Louisiana Army National Guard as a light wheel vehicle mechanic, the applicant enlisted in the Regular Army on 4 May 1988 for a period of 4 years and assignment to Korea.
3. He remained on active duty through a series of continuous reenlistments and was promoted to pay grade E-6 on 1 June 1998.
4. On 25 November 1998 while stationed at Fort Polk, Louisiana, NJP was imposed against him for driving under the influence of alcohol. The applicant did not appeal the NJP and the imposing officer directed filing the DA Form 2627 in the performance folder of his OMPF.
5. On 31 August 2000, the applicant was notified that he had been identified by the Sergeant First Class and Qualitative Management Program (QMP) Selection Board for a bar from reenlistment based on the presence of the DA Form 2627 in his OMPF.
6. The applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) on 3 November 2000 to have the DA Form 2627 transferred to the restricted folder of his OMPF. On 16 January 2001, his request was denied.
7. The applicant appealed the bar to reenlistment under the QMP and his appeal was approved on 9 April 2001.
8. The applicant was promoted to pay grade E-7 on 1 July 2002 and to pay grade E-8 on 1 July 2008.
9. A review of his official records shows he has continued to serve successfully and there is no additional derogatory information contained in his records.
10. It has been a long-standing Department of the Army policy that documents used as a basis for a bar to reenlistment under the QMP that have been successfully appealed will not be used in any future QMP actions.
11. Army Regulation 27-10 (Military Justice), in effect at the time, stated the decision to file DA Forms 2627 in the performance or restricted folder of the OMPF would be determined by the imposing commander at the time punishment was imposed. The filing decision of the imposing commander was final and was so indicated on the DA Form 2627.
12. Paragraph 3-37 of Army Regulation 27-10 provides the filing determination for the DA Form 2627 and associated documents. It provides that the restricted folder is that portion of the AMHRR/OMPF that contains information not normally viewed by career managers or selection boards.
13. Army Regulation 600-37 (Unfavorable Information) provides that records of NJP may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.
DISCUSSION AND CONCLUSIONS:
1. The NJP was imposed against the applicant in 1998 while he was serving in pay grade E-6. It was subsequently used as the basis for a Department of the Army bar to reenlistment under the QMP which he successfully appealed.
2. He has served successfully and has been promoted to two senior noncommissioned officer grades since imposition of the NJP which appears to be indicative that the intent of the punishment has been served.
3. Inasmuch as the NJP cannot be used as the basis for any future QMP actions, it serves no useful purpose for the NJP to remain in the performance folder of his AMHRR. Accordingly, it should be transferred to the restricted folder of his AMHRR.
BOARD VOTE:
___X____ __X____ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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
transferring the DA Form 2627, dated 25 November 1998, from the performance folder to the restricted folder of 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) AR20130005979
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