IN THE CASE OF:	  

		BOARD DATE:	  5 December 2013

		DOCKET NUMBER:  AR20130014592 


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 2627 (Record of Proceedings under Article 15, UCMJ), dated 6 October 2005, from the restricted folder of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

2.  The applicant states the record of nonjudicial punishment (NJP) is the only derogatory information in his record and reflects on his character, integrity, trustworthiness, and reliability.  The intended purpose of the NJP has been served and the removal of the NJP would be in the best interest of the Army.  The record of NJP is damaging his character and keeping him from getting promoted.  He appeared before an administrative separation board convened to determine if he should be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12c for misconduct – commission of a serious offense, and the board determined he should be retained.  He concludes by stating he was promoted back to the rank/grade of staff sergeant (SSG)/E-6 on 
1 December 2006, he has completed all levels of his military education, and he has obtained a college degree.  Additionally, he has held leadership positions and has a secret security clearance; however, he is being judged for the NJP he received when considered for promotion.

3.  The applicant provides the documents listed on page 5 of his on-line application to the Board.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 October 1995 for a period of 3 years and training as a cannon crewman.  He completed his training and has remained on active duty through a series of continuous reenlistments.  He was promoted to sergeant (SGT)/E-5 on 14 November 2000 and to SSG/E-6 on
1 May 2002.

2.  On 6 October 2005, while stationed in Hawaii, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using anabolic androgenic steroids.  His punishment consisted of a reduction to SGT/E-5, a forfeiture of pay for 2 months (suspended), and extra duty and restriction for 45 days.  The applicant did not appeal his punishment and the imposing commander directed that the DA Form 2627 be filed in the restricted fiche of his OMPF.

3.  The applicant was again promoted to SSG/E-6 and his evaluation reports reflect he has continued outstanding performance of duty.  His record shows no evidence of any additional disciplinary action or derogatory information.

4.  Army Regulation 27-10 (Military Justice) prescribes the guidelines for filing of NJPs.

	a.  It states the decision to file the original DA Form 2627 in the performance or restricted folder of the AMHRR will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander indicated on the DA Form 2627 is final. 

	b.  Paragraph 3-37 provides the filing determination for the DA Form 2627 and associated documents.  It states the restricted folder of the AMHRR is that portion that contains information not normally viewed by career managers or selection boards.

5.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that selection boards will recommend a specific number of Soldiers by military occupational specialty (MOS) from the zones of consideration who are the best qualified to meet the needs of the Army.  Soldiers who are not selected for promotion will not be provided specific reasons for their non-selection and board members may not record their reasons or give reasons for selection or non-selection.  However, a Soldier within the announced zone may write to the president of the board inviting attention to any matter he or she feels is important in considering his or her records.

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 folder of his AMHRR as directed by the imposing commander.

2.  By regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  After considering the available evidence submitted by the applicant in a closed hearing, the commander found him guilty of the alleged misconduct.  Accordingly, there appears to be no error or injustice in this case or any valid basis for removing the record of NJP from his official records.

3.  The applicant's contention that the contested NJP served to prevent his promotion earlier has been noted and appears to lack merit.  While it is unfortunate the applicant has not been selected for promotion, it is a well known fact that promotion selection boards must select the best qualified Soldiers to meet the needs of the Army within each MOS and there are generally more Soldiers eligible for promotion than there are validated promotion objectives.

4.  Accordingly, there are always Soldiers who are not selected within a given MOS and it is not within the purview of this Board to second guess the selection boards that had the advantage of reviewing all of the records of Soldiers eligible in order to determine who was best qualified to meet the needs of the Army at that time.

5.  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)                                         AR20130014592



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ABCMR Record of Proceedings (cont)                                         AR20130014592



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