IN THE CASE OF:	  

		BOARD DATE:  10 September 2013

		DOCKET NUMBER:  AR20130013390 


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 nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) from his Army Military Human Resource Record (AMHRR).

2.  The applicant states, in effect, he was in the rank/grade of private (PVT)/E-1 at the time he received this NJP; therefore, it was not authorized to be filed in his AMHRR.

3.  The applicant provides:

* Self-authored letter, dated 3 May 2012
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
24 November 1986

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 enlisted in the Regular Army on 26 August 1986 and held military occupational specialty 62B (Construction Equipment Repairer).  The highest rank/grade he attained while serving on active duty was (SGT)/E-5.  

3.  On 24 November 1986, in the rank/grade of PVT/E-1, he accepted NJP under the provisions of Article 15 of the UCMJ) for striking another Soldier with his fist.  Item 5 of the DA Form 2627, regarding the filing of the Article 15 in the performance or the restricted section of his AMHRR (formerly known as the Official Military Personnel File), directed that the NJP be filed in the restricted folder of his AMHRR.

4.  Review of his interactive Personnel Records Management System (iPERMS) file shows the Article 15 is currently filed in the restricted section of his AMHRR.

5.  He was honorably released from active duty on 25 August 1990 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  

6.  His Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 29 August 2013, shows that he served in the USAR from around the time of his release from active duty until on or about 27 March 1996.

7.  On 6 December 1996, he enlisted in the Army National Guard (ARNG) and it appears that he served through a series of reenlistments or extensions.  His ARPC Form 249-E shows he served in the ARNG from on or about 28 March 1996 until 25 May 2005.

8.  His record contains a DA Form 71 (Oath of Office – Military Personnel) which shows he was appointed as a Reserve Commissioned Officer on 26 May 2005.  He is currently serving as a chaplain in USAR and holds the rank/grade of captain (CPT)/O-3.

9.  On 3 May 2013, he applied to the Department of the Army Suitability Evaluation Board (DASEB) to request his NJP be removed from the restricted folder of his AMHRR.  However, on 3 July 2013, the DASEB informed him that his request did not fall under the purview of that board and referred him to the ABCMR.


10.  Army Regulation 27-10 (Military Justice), paragraph 3-43 (Transfer or removal of records of nonjudicial punishment), in effect at the time, covers policies and procedures for enlisted members (E6 and above) and commissioned and warrant officers to petition the DASEB for transfer of records of nonjudicial punishment from the performance to the restricted portion of the AMHRR. (See table 3-2.).

11.  Army Regulation 27-10, table 3-2 (Removal of Records of NJP From Military Personnel Files), in effect at the time, states NJP under the provisions of Article 15 of the UCMJ may be removed by the ABCMR if the member applies for transfer or removal on the basis of error or injustice on the grounds that the record of punishment has served its purpose and removal is in the best interest of the Army, and the Member has already applied to the DASEB and been denied.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was a PVT/E-1 at the time he accepted the NJP.  The imposing officer directed the NJP be filed in the restricted folder of his AMHRR.  Further, at the time he accepted the NJP Army regulation provided for the filing of NJP in the AMHRR of lower enlisted Soldiers.

2.  Despite his mishap at a very early stage of his career, the applicant continued to Soldier on and learned from his mistake.  Not only did he continue to serve in an enlisted status, but he also went on to serve as a commissioned officer.  The existence of the Article 15 in his file serves absolutely no purpose.  Although the Article 15 is neither untrue nor unjust, it appears its removal is in the best interests of the Army.  

3.  Based on the foregoing, this Article 15 together with any allied documents should be expunged from his AMHRR.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 removing the Article 15, dated 24 November 1986, and allied documents from the Restricted folder of his AMHRR.  Additionally, this Record of Proceeding will be returned to this board for filing and disposition.



      _______ _  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)                                         AR20130013390





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ABCMR Record of Proceedings (cont)                                         AR20130013390



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