IN THE CASE OF:
BOARD DATE: 20 August 2013
DOCKET NUMBER: AR20130009162
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 the removal of a DA Form 4856 (Developmental Counseling Form), dated 30 January 2010, from 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 nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for failure to repair (FTR); however, there is an incorrect DA Form 4856 in his record indicating he was counseled for driving under the influence (DUI) and FTR. He goes on to state he was not charged with DUI and that counseling was supposedly destroyed and redone solely for FTR. He further states it is not reflected on his evaluation report and he received his Army Good Conduct Medal.
3. The applicant provides:
* Permanent Orders 305-01, issued by Headquarters, 3rd Battalion,
187th Infantry Regiment, 3rd Brigade Combat Team, 101st Airborne Division, Fort Campbell, KY, dated 1 November 2010
* DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Report) for the period 4 June 2009 through 3 June 2010 and 4 June 2010 through 14 May 2011
CONSIDERATION OF EVIDENCE:
1. The applicant was serving in the rank of sergeant at Fort Campbell when he was counseled on 30 January 2010 for failure to go to his place of duty and DUI. He was advised that the battalion commander would make a decision on the course of action to be taken.
2. The applicant was subsequently advised that because the unit was deploying to Afghanistan, his punishment would be decided at a later date.
3. On 15 June 2010, NJP was imposed against the applicant in Afghanistan for failure to go to his place of duty (accountability formation) on 29 January 2010. The applicant did not appeal his punishment and the imposing officer directed that the DA Form 2627 be filed in the restricted section of his AMHRR. The
DA Form 2627 listed three counseling statements (including the contested DA Form 4856) as enclosures. Accordingly, the DA Form 2627 with enclosures was filed in the restricted section of his AMHRR.
4. Army Regulation 27-10 (Military Justice) prescribes the guidelines for filing of NJPs. It states the decision to file the original DA Form 2627 in the performance or restricted section of the AMHRR will be determined by the imposing commander at the time punishment is imposed. Personnel serving in pay grade E-4 or below with less than 3 years of service will have the DA Form 2627 filed in the local unit military justice files. Personnel serving in pay grade E-4 with 3 or more years of service will have the DA Form 2627 filed in the AMHRR. The filing decision of the imposing commander indicated on the DA Form 2627 is final.
5. Army Regulation 27-10, paragraph 3-37 provides the filing determination for the DA Form 2627 and associated documents. It states the restricted section of the AMHRR is that portion that contains information not normally viewed by career managers or selection boards.
DISCUSSION AND CONCLUSIONS:
1. It appears that NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so. The NJP and associated documents were properly filed in the restricted section of his OMPF as directed by the imposing commander.
2. The applicant has not provided and the available records do not contain any evidence to show that the counseling statement in question was not valid or was not intended to be filed with the DA Form 2627.
3. In view of the foregoing and in the absence of evidence to show an error or injustice exists in his case, there is an insufficient evidentiary 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) AR20130009162
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