IN THE CASE OF:	  
	
		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20130006958 


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, Uniform Code of Military Justice (UCMJ)), dated 1 October 2004, from the restricted section of his Army Military Human Resource Record (AMHRR).

2.  The applicant states he believes sufficient time has passed since the event causing him to receive a field grade Article 15 and it should now be removed from his AMHRR.

3.  The applicant provides:

* Orders 292-00302, issued by the U.S. Army Combined Arms Support Command, Fort Lee, VA, dated 19 October 2005
* Bronze Star Medal Certificate, dated 9 January 2008
* Army Commendation Medal Certificate, dated 18 August 2008
* DA Form 2166-8 (NCO (Noncommissioned Officer) Evaluation Report) for the period 1 June 2010 through 19 January 2011
* DA Form 2166-8 for the period 20 January 2011 through 19 January 2012
* Permanent Orders 270-04, issued by the U.S. Army Recruiting Battalion Indianapolis, Indianapolis, IN, dated 26 September 2012
* Enlisted Record Brief (ERB), dated 15 January 2013
* DA Form 2166-8 for the period 20 January 2012 through 19 January 2013


CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a staff sergeant (SSG)/E-6.

2.  He was promoted to sergeant (SGT)/E-5 on 1 May 2001.

3.  On 1 October 2004, while holding the rank/grade of SGT/E-5 and serving as a training NCO, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for failing to obey a lawful order by wrongfully obtaining pornographic material on his government issued computer.  His punishment consisted of a suspended reduction to specialist (SPC)/E-4, forfeiture of pay, and extra duty.  The imposing commander directed filing the original DA Form 2627 in the restricted section of the applicant's AMHRR.  The applicant elected not to appeal his punishment.

4.  A review of the applicant's AMHRR confirmed the contested DA Form 2627 is filed in the restricted section of his AMHRR.

5.  Since this incident, the applicant has accomplished the following:

* Promoted to staff sergeant on 1 November 2005
* Awarded the Bronze Star Medal for exceptionally meritorious achievement in support of Operation Iraqi Freedom in 2007 and 2008
* Awarded the Army Commendation Medal for meritorious service from
1 September 2005 to 26 August 2008
* Awarded the Army Good Conduct Medal (5th Award) for the period
17 September 2009 to 16 September 2012
* Evaluated as "among the best" on each of his three DA Forms 2166-8 from 1 June 2010 to 19 January 2013

6.  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 non-punitive 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 non-punitive measures are considered inadequate or inappropriate.  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.  It further states:
	a.  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.  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 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.  For the transfer or removal of DA Forms 2627 from the AMHRR, applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further states that there must be clear and compelling evidence to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  It:

	a.  identifies those documents that 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.  It shows the DA Form 2627 is filed in either the performance or restricted section of the AMHRR as directed in item 5 of the DA Form 2627.

	b.  provides that 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 will not be released without written approval from the Commander, U.S. Army Human Resources Command (HRC), or the Department of the Army Headquarters selection board proponent.  This paragraph also provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his AMHRR should be corrected by removing the DA Form 2627 imposed on 1 October 2004, because he believes sufficient time has passed since the event causing him to receive this NJP.

2.  The evidence of record confirms the applicant violated the UCMJ while serving as a SGT for failing to obey a lawful order by wrongfully obtaining pornographic material on his government issued computer.  The imposing commander directed filing the Article 15 in the restricted section of the applicant's AMHRR.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted portion of his AMHRR as directed by the imposing commander.  There is no evidence of record and he provides none to show the DA Form 2627 is untrue or unjust.  Furthermore, the applicant does not dispute the contents of the NJP.

4.  In order to remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust.  In the absence of an error or an injustice, there is no reason to remove it from his records.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130006958



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ABCMR Record of Proceedings (cont)                                         AR20130006958



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