IN THE CASE OF:	  

		BOARD DATE:	  31 October 2013

		DOCKET NUMBER:  AR20130017155 


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 transfer of Orders Number 08-296-00004 to the "Restricted" folder of his Army Military Human Resource Record (AMHRR).

2.  The applicant states he was issued an Article 15 which clearly indicated its filing in the "Restricted" folder.  He believes all adverse actions that accompany it are restricted also.  Currently, the Article 15 is located in the "Restricted" folder, but the accompanying document, the reduction orders (Orders Number 08-296-00004), is filed in the performance folder.

3.  The applicant provides copies of Orders Number 08-296-00004 and the front page of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice).

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 U.S. Army Reserve (USAR), in pay grade E-1, on 12 January 2004.  He completed training and was awarded military occupational specialty 88H (Cargo Specialist).  

3.  Orders Number 07-123-00004 issued by Headquarters, 641st Area Support Group, on 3 May 2007, promoted him to the rank of sergeant, pay grade E-5, with an effective date of 1 April 2007.

4.  He entered active duty in support of Operation Iraqi Freedom on 7 March 2008.  

5.  On 29 September 2008, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for wrongfully possessing and consuming alcoholic beverages and wrongfully using and processing steroids on 7 September 2008.  His punishment included reduction to pay grade E-4, a forfeiture of $560.00 of pay (suspended until 7 March 2009), and 7 days of extra duty.  He did not appeal the punishment.

6.  On 10 October 2008, the applicant's commander directed the Article 15 be filed in the restricted folder of his AMHRR.  He was reduced to pay grade E-4 effective the same date by Orders Number 08-296-00004, dated 22 October 2008.  The orders do not contain the reason for reduction.

7.  He reenlisted in the USAR, in pay grade E-4, on 17 February 2009 and he was honorably released from active duty on 11 March 2009.

8.  A DA Form 2166-8 (Noncommissioned Officer Evaluation Report), for the period 11 December 2009 through 31 July 2010, shows he was again promoted to pay grade E-5 effective 11 December 2009.

9.  Orders Number 11-119-00047 were issued by Headquarters, 81st Regional Support Command, on 29 April 2011, promoting him to the rank of staff sergeant, pay grade E-6, with an effective date of 1 May 2011.

10.  He is currently serving in an active Reserve status.

11.  A review of his record located on the interactive Personnel Electronic Records Management System (iPERMS) shows the reduction order is filed in the "Service" and the Article 15 is filed in the "Restricted" folder of his AMHRR.


12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. The regulation states:

	a.  The promotion instrument is the order or DA Form 4187 (Personnel Actions).  The DA Form 4187 is the official instrument used by commanders to recommend Soldiers for promotion to specialist and below.  Field-grade commanders in units authorized a commander in the grade of lieutenant colonel or higher have promotion authority to the grades of SGT and SSG; however, the promotions section maintains the recommended list and issues the orders.

	b.  Paragraph 10-12 (Reduction Orders) states reduction [of enlisted personnel] except for UCMJ, Article 15, is announced in orders.  When an Article 15 reduction is accomplished for misconduct and the Article 15 was directed to be filed in the restricted folder of the AMHRR, a DA Form 4187 will be prepared by the Battalion Human Resources office for permanent filing in the MPF [Military Personnel File] to substantiate the reduction.  The DA Form 4187 will not contain the reason for the Article 15.  The DA Form 4187 will be removed and forwarded to the AMHRR when the Soldier is promoted to SGT or higher.

13.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR Management Program.  It also prescribes the composition of the AMHRR.  This regulation states:

   a.  Once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  Table B-1 of the regulation shows the compilation of all forms and documents approved for filing in the AMHRR and/or IPERMS in the following folders:
   
   	(1)  Performance folder – maintains performance related information to include evaluations, commendatory documents, and specific disciplinary information and training/education documents.
   
   	(2)  Service folder – maintains general, and administrative, and Service document.  Promotion or reduction orders are designed for filing in the "Service: folder.  There are no provisions for the transfer of these documents to the "Restricted" folder of the AMHRR.
   
   	(3)  Restricted folder – maintains documents that may normally be considered improper for viewing by selection boards or career managers.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, while serving as a member of the USAR on active duty, was punished under Article 15.  His punishment included a reduction to pay grade E-4.  On 10 October 2008, it was directed the Article 15 be filed in the restricted folder of his record and he was reduced the same day.  Orders Number 08-296-00004 were issued reducing him to pay grade E-4.

2.  In accordance with regulatory guidance reduction of enlisted personnel under Article 15 the reduction instrument is a DA Form 4187 which will be placed in the AMHRR when the Soldier is promoted to SGT or higher.  The applicant was issued reduction orders and not a DA Form 4187; however, this is a harmless error, as there is no error or injustice in his reduction.  Regulatory guidance also specifies reduction orders are a permanent part of the "Service" folder.  Therefore, he is not entitled to the transfer of Orders Number 08-296-00004 from the performance to the restricted folder of his AMHRR.

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)                                         AR20130017155



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ABCMR Record of Proceedings (cont)                                         AR20130017155


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