IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130014471 


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 reconsideration of his request to transfer his DA Form 2627 (Record of Nonjudicial Punishment (NJP) under Article 15, Uniform Code of Military Justice), dated 21 May 2009, from the performance section to the restricted section of his Army Military Human Resource Record (AMHRR).

2.  The applicant states, in effect, that the record of NJP has served its intended purpose and it is in the best interest of the Army to move it to the restricted section of his AMHRR because he has been passed over for promotion to the pay grade of E-7.  He goes on to state that the NJP should be moved so that he can continue to further develop growth and improve himself, family and career in the military. 

3.  The applicant provides a two-page letter explaining his application, copies of his Enlisted Record Brief, his last four Noncommissioned Officer Evaluation Reports (DA Form 2166-8), and four third-party letters of support.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120017541, on 21 February 2013.

2.  The applicant enlisted in the Regular Army on 14 September 1999 for a period of 3 years, training as a combat engineer and assignment to Korea.  He completed his one-station unit training at Fort Leonard Wood, Missouri, and was transferred to Korea for his first assignment.

3.  He remained on active duty through a series of continuous reenlistments, has served a tour in Korea, two tours in Germany, two tours in Iraq and one in Afghanistan.  He was originally promoted to the pay grade of E-6 on 1 December 2005.

4.  On 21 May 2009, while serving as a drill sergeant at Fort Leonard Wood, NJP was imposed against him for wrongfully purchasing a cell phone for an initial entry training (IET) Soldier, two specifications of wrongfully engaging in a personal and social relationship with an IET Soldier, three specifications of signing false official statements regarding transporting IET Soldiers after 1800 hours and being alone with an IET Soldier (twice) in a medicine closet or charge of quarters office.  His punishment consisted of a reduction to the pay grade of  E-5 and a suspended forfeiture of $1,335.00 pay.  The applicant did not appeal the punishment and the imposing commander (battalion commander) directed that the DA Form 2627 be filed in the performance section of his AMHRR. 

5.  The applicant received a change of rater Noncommissioned Officer Evaluation Report (NCOER) covering the period 20090105 – 20090531 and received a “No” rating under the Integrity block.  The supporting bullet comments indicate that his poor decisions overshadowed the unit’s mission accomplishments.  He also received a “Needs Improvement” in the area of “Competence."  The supporting bullet comments indicate that he put personal wants ahead of unit goals resulting in lowering of unit morale.  There is no evidence in the available records to show that he appealed that report. 

6.  The applicant was reassigned to a position as an operations sergeant and was subsequently transferred to Germany where he was again promoted to the pay grade of E-6 on 1 July 2010.

7.  On 5 April 2012 the Department of the Army Suitability Evaluation Board (DASEB) unanimously denied the applicant’s petition to transfer the DA Form 2627 to the restricted section of his AMHRR.

8.  The four NCOERs provided by the applicant cover the period from 20090905 – 20130331 and show that he has been evaluated as a squad leader and Family Readiness Leader and he has essentially received maximum evaluations on all four reports and recommendation for immediate promotion to the pay grade of 
E-7.

9.  The four third-party letters of support provided by the applicant with his application are from members of his chain of command who all recommend approval of the applicant’s request and attest that the record of NJP has served its intended purpose.

10.  Army Regulation 600-37 (Unfavorable Information) states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

   a.  Paragraph 3-2c states that unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.  These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others.  Other unfavorable character traits of a permanent nature should be similarly recorded; and 
   
   b. Paragraph 7-2c(1), states that records of NJP may be appealed on the basis of proof that its intended purpose has been served or that its transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that one of these conditions have been met.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to transfer the Article 15 in question to the restricted section of his AMHRR has been carefully considered along with his supporting documents submitted with his application.  However, given the serious nature of his offenses and the position of responsibility he held at the time, his request appears to lack merit.  

2.  The applicant violated the trust placed in him as a senior noncommissioned officer and drill sergeant responsible for the care, training and molding of IET Soldiers placed in his care by committing multiple offenses involving inappropriate conduct with his IET Soldiers.  In short, he took unfair advantage of the Soldiers placed in his care by using his position in an inappropriate manner.

3.  The applicant’s contention that the NJP has served its intended purpose because he has been passed over for promotion has also been noted; however, the purpose of imposing NJP is to change behavior and hold individuals accountable for their actions.  It is also noted that the imposing commander placed the record of NJP in the performance section which is indicative that he wanted the applicant’s punishment to be made a matter of record that would be viewed by the appropriate personnel managers and selection boards in evaluating the whole Soldier.  Accordingly, the applicant’s performance and conduct can be properly evaluated and given the weight it deserves.  Simply put, the purpose of NJP is not to deny promotions to deserving Soldiers but to correct behavior that is not acceptable.

4.  While the applicant may have been passed over for promotion, it does not necessarily imply that the record of NJP was the resultant cause of his non-selection as it is a well known fact that promotion selection boards do not divulge the reasons for selection or non-selection for promotion.

5.  Accordingly, given the nature of his offenses, there appears to be insufficient basis to transfer the record of NJP to the restricted section of his AMHRR at this time. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20120017541, dated 21 February 2013.



      _______ _   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)                                         AR20130014471





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ABCMR Record of Proceedings (cont)                                         AR20130014471



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