IN THE CASE OF:	

		BOARD DATE:	    9 January 2014

		DOCKET NUMBER:  AR20130017665 


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:

* removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 13 February 2007, belonging to another Soldier from his records located on the integrated Personnel Electronic Records Management System (iPERMS)
* removal of two DA Forms 2627, dated 20 January 2007 and 13 August 2007, from his Army Military Human Resource Record (AMHRR) 
* in the alternative, transfer of the Article 15 filed in the performance folder to the restricted folder of his AMHRR

2.  The applicant states:

   a.  A UCMJ action that belongs to another Soldier is filed in his records.  There are two DA Forms 2627 belonging to him that he would also like to be removed from his records if possible.  If not removed, he requests their transfer to the restricted folder.  These two documents were given to him during combat during Operation Enduring Freedom.  At that time, he was serving as an infantryman with the 25th Infantry Division, who fought and stood behind his country from beginning to end.

	b.  He lost some close battle buddies and had some home issues on top of that which made things very stressful and he became depressed.  He received both DA Forms 2627 while deployed.  The first Article 15 he received was due to a drink he had on Christmas night only after hearing that his wife had lost their child to a miscarriage for the fourth time.  He felt bad because he couldn't be there for her because at the time his unit did not allow him to go home.

	c.  Today, he and his wife are still without children after 12 years of marriage. He knows there are not any excuses when you do wrong, but he believes in consideration and hearing a Soldier out.  Afterwards, one should make a decision.  One of his Article 15s states he had a positive urinalysis for taking a valium pill (muscle relaxer).  The honest truth is, a friend of his jokingly placed a valium in his bottle of water without his consent and later told him after he drank the water.  The next day his company ordered a urinalysis.  At that time, he couldn't plead his case because of his prior misconduct from drinking.

   d.  As of February 2013, he has now been in the service for 13 years and he plans to stay until retirement.  He is now an Active Guard Reserve (AGR) member and he gives and puts out great effort to take care of Soldiers.  He was honorably discharged from active duty once his command saw he served his punishment and was a good Soldier as well as a good person.  He just made some bad decisions.  He is now more mature and has learned from his mistakes.

   e.  He hopes this letter to the Board will help his case; if not, he knows that he tried.  He is a fighter, not a quitter.  He is standing proud and tall and still loves serving his country.  This is his life, Army Strong.  He is sending copies of his Non-Commissioned Officer Evaluation Reports (NCOER) showing his true performance and documents proving he and his wife are still trying to have a family.

3.  The applicant provides:

* Five NCOERs for the years 2009, 2010, 2012, and 2013
* Two DA Forms 2627 dated 20 January and 13 August 2007
* One DA Form 2627, dated 13 February 2007, pertaining to another Soldier
* Certificate of Marriage
* Documents pertaining to him and his wife's infertility treatments

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 8 February 2001.  He completed training and was awarded military occupational specialty 11B (infantryman).  He reenlisted in the RA on 6 November 2003 for 4 years and he was promoted to pay grade E-5 on 1 July 2004.

2.  He provided a copy of a marriage certificate which shows he and his wife were married on 8 June 2001.

3.  He also provided copies and his records contain:

   a.  A DA Form 2627 which shows that on 20 January 2007 the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for wrongfully consuming alcoholic beverages on 26 December 2006.  His punishment included a forfeiture of pay, restriction, and extra duty.  He elected a closed hearing.  On the same day, he was found guilty of all specifications and his commander directed the Article 15 be filed in the restricted folder of his AMHRR.  He elected not to appeal his punishment.

   b.  A DA Form 2627 which shows that on 13 February 2007 another Soldier, with a different name and a different social security number, accepted NJP under Article 15, UCMJ, for being found drunk on duty.  The commander directed the Article 15 be filed in the restricted folder of this Soldier’s AMHRR.  Also attached to the DA Form 2627 are a DA Form 4856 (Developmental Counseling Form), a Legal Action Request Form, a Field Grade NJP Worksheet, two memoranda, and a Report of Suspend Favorable Personnel Actions for this Soldier.

   c.  A DA Form 2627 which shows on 13 August 2007, the applicant accepted NJP under Article 15, UCMJ, for wrongfully consuming an alcohol beverage on 13 July 2007 and wrongfully using Valium between 27 May and 2 June 2007.  His punishment included a reduction to pay grade E-4, a forfeiture of pay, and restriction and extra duty.  He elected a closed hearing.  On the same day, he was found guilty of all specifications and his commander directed the Article 15 be filed in the performance folder of the AMHRR.  He elected not to appeal his punishment.

4.  He was reduced to pay grade E-4 on 13 August 2007.

5.  He was honorably released from active duty on 5 January 2008 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was assigned to a Reserve unit on 31 May 2008.

6.  He was again promoted to pay grade E-5 on 15 February 2009 and to pay grade E-6 on 1 April 2010.  He is currently serving on active duty in an AGR status.

7.  He further provides copies of:

* five NCOERs for the years 2010, 2011, 2012, and 2013 which show he was accessed as “Excellent,” Successful,” “Fully Capable,” and “Among the Best” during these rating periods
* a letter from a medical doctor pertaining to him and his wife’s participation in a fertility program

8.  A review of the applicant's records located on the iPERMS shows:

* the DA Form 2627 issued on 20 January 2007 is filed in the restricted folder of his AMHRR and the DA Form 2627 issued on 13 August 2007 is filed in the performance folder of his AMHRR
* the DA Form 2627, dated 13 February 2007, and allied documents pertaining to another Soldier are filed in the restricted folder of the applicant’s AMHRR

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  The regulation states in:

   a.  Chapter 3 - NJP imposed to correct misconduct, as a result of intentional disregard of or failure to comply with prescribed standards of military conduct, in violation of the UCMJ, may be set aside or removed upon determination that, under all the circumstances of the case, a clear injustice had resulted.

   b.  Paragraph 3-37(1)(1) – the decision to file the original DA Form 2627 in the performance or restricted folders in the AMHRR will be made by the imposing commander at the time punishment in imposed.

   c.  Paragraph 3-43 – contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  Applications for removal of a DA Form 2627 from a Soldier’s AMHRR based on error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). There must compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

   d.  Paragraph 7-2a – 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 to competent authority.  

   e.  Paragraph 7-2b(1) – unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the appellant to provide substantial evidence that these conditions have been met.
10.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR Management Program and it composition.  The regulation states 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the restricted folder of the applicant's AHMRR contains a DA Form 2627, dated 13 February 2007, and allied documents pertaining to another Soldier.  This DA Form 2627 and allied documents does not pertain to the applicant.  He is therefore entitled to the removal/deletion of this Article 15 and allied documents from his AMHRR.

2.  The evidence of record shows the applicant was twice punished under Article 15 for wrongfully consuming alcoholic beverages.  His imposing commander directed the first Article 15 be filed on his restricted folder.  The second Article 15 which included wrongfully consuming alcoholic beverages and use of a controlled substance was directed to be filed on his performance folder.  

3.  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, and 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 and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.

4.  He received his first NJP in January 2007, while holding the rank of sergeant, in a combat zone.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  It appears the imposing commander considered the totality of the situation and ordered this Article 15 filed in the restricted folder of the applicant's AMHRR.  

5.  He received his second NJP in August 2007, also while holding the rank of sergeant, in a combat zone.  This NJP was also imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  The NJP was properly filed in the performance section of his AMHRR.

6.  His contentions and the documents he submitted were carefully considered.  However, there is no evidence of record and he did not provide sufficient showing the two DA Forms 2627 he was issued for his misconduct were issued in error or were unjust, in whole or in part, to support their removal from his AMHRR.  He also did not provide sufficient evidence for the removal of either Article 15 from his AMHRR. 

7.  It is acknowledged the applicant's performance has since been very good as evidenced by the ratings on his NCOERs.  The Army, as a policy, requires a second Article 15 to be placed in the performance section if the first Article 15 was filed n the restricted section.  This serves to make the Article 15 more visible to promotion boards and other boards that may consider the applicant for certain sensitive positions.  While it appears that the applicant has worked hard to show his potential and overcome his Article 15s, his accomplishments are not so meritorious as to warrant the relief he requests.  

8.  In accordance with regulatory guidance there must be compelling evidence to support the removal or transfer of a properly-completed, facially-valid DA Form 2627 from a Soldier’s records.  Absent evidence meeting this regulatory standard there is an insufficient evidentiary basis to support his request. 

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 records of the individual concerned be corrected by removing/deleting from the restricted folder of the applicant's AMHRR a DA Form 2627, dated 13 February 2007, and allied documents pertaining to another Soldier.

2.  The Board further determined that the evidence presented was 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 two DA 
Forms 2627, dated 20 January and 13 August 2007, from his AMHRR or transfer of the DA Form 2627, dated 13 August 2007, to the restricted folder of 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)                                         AR20130017665





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ABCMR Record of Proceedings (cont)                                         AR20130017665



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