BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130009709 


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 DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), be removed from:

* the performance and restricted folders of his Official Military Personnel File (OMPF), now known as the Army Military Human Resource Record (AMHRR)
* all civilian law enforcement databases

2.  The applicant states:

	a.  The Article 15 should be removed from his AMHRR because the intended purpose of the nonjudicial punishment (NJP) has been served.  It is in the best interests of the Army to do so as he completed his deployment and was honorably discharged [from active duty].

	b.  In August 2012, he was denied entry into Canada by the Canada Border Services Agency (CBSA).  The CBSA agent told him the reason he was not admitted into Canada was the presence of the NJP in his record.  The inability to enter Canada has prejudiced his ability to employ himself fully.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DA Form 2627.



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 was a member of the New Hampshire Army National Guard (NHARNG) serving in the rank/grade of sergeant (SGT)/E-5 when he was ordered to active duty in support of Operation Iraqi Freedom as a member of his ARNG unit.  He entered active duty on 5 December 2004 and he served in Iraq from 19 January to 23 December 2005 while assigned to the 1159th Medical Company.

3.  In August 2005, in response to information from the U.S. Navy Criminal Investigative Service (NCIS), the U.S. Army Criminal Investigation Command in Iraq, commonly known as CID, initiated an investigation into the allegation that the applicant mailed weapon parts to an address in the United States. 

4.  On 15 November 2005, he accepted NJP under the provisions of Article 15, UCMJ, for:

* violating a lawful general regulation by having a privately owned weapon while deployed to Iraq
* signing an official record on 8 August 2005, with intent to deceive, a DA Form 2823 (Sworn Statement) during a CID interview which he knew to be false

5.  The punishment imposed was a reduction to the rank/grade of specialist (SPC)/E-4.  The imposing commander directed the DA Form 2627 be filed in the restricted folder of his AMHRR.  He did not appeal the Article 15 and he was reduced to SPC on 12 November 2005.

6.  He was honorably released from active duty on 8 February 2006 in the rank of SPC.

7.  A review of the Interactive Personnel Electronic Records Management System (iPERMS) shows that three copies of the DA Form 2627 are filed in the performance folder of his AMHRR; one of these DA Forms 2627 contains 44 pages of allied documents.  The DA Form 2627 is not filed in the restricted folder of his AMHRR.  

8.  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.  

	a.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  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:

	b.  Paragraph 3-43 of this regulation contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the ABCMR.  There must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

9.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.  The naming convention AMHRR replaces OMPF.  Folders and documents previously authorized for filing in any part of the OMPF will remain in the AMHRR.  The AMHRR is the historical and authoritative source for authentication of veteran or Service-related benefits, entitlements, and services.

10.  Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the AMHRR and/or iPERMS.  Table B-1 states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4b or 5 of DA Form 2627.  

11.  Title 10, U.S. Code (USC), section 1552, states the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error, or remove and injustice.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant received an Article 15 in November 2005 for violating a lawful regulation by having a privately owned weapon while deployed to Iraq and for submitting a false sworn statement to CID.  He accepted the NJP and he did not appeal it.  The Article 15 was properly administered in accordance with applicable regulations.  There is no evidence and the applicant has not provided any evidence of an error or an injustice.  

2.  The purpose of maintaining the AMHRR is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file.  Therefore, he is not entitled to the requested relief of removing the Article 15 from his AMHRR.

3.  However, the imposing commander directed the Article 15 be filed in the restricted folder of his AMHRR and it appears an error occurred when the Article 15 and allied documents were improperly filed in the performance folder of his AMHRR.  Therefore, it would be appropriate to transfer all the DA Forms 2627 and allied documents from the performance folder to the restricted folder of his AMHRR.

4.  With respect to removing the DA Form 2627 from civilian databases, in accordance with Title 10, USC, the ABCMR only has the authority to correct Army records.  It does not have jurisdiction over or the authority to correct records contained in other agency reporting systems.

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 and the Army National Guard records of the individual concerned be corrected by moving all copies of the Article 15, dated 15 November 2005, and all allied documents from the performance folder to the restricted folder 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 the removal of his 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)                                         AR20130009709





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ABCMR Record of Proceedings (cont)                                         AR20130009709



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