IN THE CASE OF:	  

		BOARD DATE:	  5 August 2014

		DOCKET NUMBER:  AR20130020854 


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)) relating to wrongful use and possession of a controlled substance from his Official Military Personnel File (OMPF).

2.  The applicant states he did not receive an Article 15, but it is present in his file.  He was falsely accused and he was defamed.

3.  The applicant provides:

* DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 23 January 1992
* memorandum from the U.S. Army Criminal Investigation Command (CID), dated 11 April 2002
* letter from the North Carolina Department of Justice Criminal Justice Standards Division, dated 30 May 2002

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the derogatory information from the applicant's records.

2.  Counsel states based on several investigations, it was determined that the applicant was cleared of any wrongdoing in the matter of "wrongful possession and use marijuana" and "wrongful possession, use, and distribution of cocaine."

3.  Counsel provides no additional evidence.

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's records show he enlisted in the Regular Army on 23 November 1983 and held military occupational specialty 76C (Materiel Control and Parts Specialist).

3.  On 10 July 1986 at a closed hearing and after having declined trial by a court-martial, the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for wrongfully using marijuana between 13 April 1986 and 12 May 1986 while holding the rank/grade of specialist four (SP4)/E-4.  The imposing commander directed filing this Article 15 in the restricted folder of his OMPF.  The applicant elected not to appeal the NJP.

4.  The applicant reenlisted in the Regular Army on 7 November 1986 and again on 24 October 1991.  He was promoted to sergeant (SGT)/E-5 on 30 August 1988.

5.  On 24 August 1989 at a closed hearing and after having declined trial by a court-martial, the applicant accepted NJP under Article 15, UCMJ, for operating a vehicle while drunk while holding the rank/grade of SGT/E-5.  The imposing commander directed filing this Article 15 in the performance folder of his OMPF.  The applicant appealed the NJP, but his appeal was denied.

6.  He was honorably discharged from active duty on 30 April 1992.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 8 years, 5 months, and 8 days of active duty service.


7.  He provided:

	a.  A DA Form 2833, dated 23 January 1992, used to record disciplinary or administrative action taken by the member's commander, shows the commander took disciplinary action against the applicant for the offenses of wrongful possession and use of marijuana and wrongful possession, use, and distribution of cocaine between 14 February and 8 March 1991.  The form also shows the resultant punishment was a reduction from E-4 to E-3.

	b.  A letter from a Fort Eustis CID warrant officer, dated 11 April 2002, states the applicant contacted him in relation to the offenses of wrongful possession and use of marijuana and wrongful possession, use, and distribution of cocaine between 14 February and 8 March 1991 and that he did not accept NJP for this action.  The warrant officer also stated his search of office files as well as a name check with the Fort Eustis Military Pay Office and Staff Judge Advocate all met with negative results.

	c.  A letter from the North Carolina Department of Justice Criminal Justice Standards Division, dated 20 May 2002, states the applicant was advised that the proposed suspension from employment was rescinded after the State received information that he was not, in fact, charged with offenses of wrongful possession and use of marijuana and wrongful possession, use, and distribution of cocaine between 14 February and 8 March 1991.

8.  His Article 15 is currently filed in the restricted and performance folders of his OMPF.  There is no Article 15 filed in his record in relation to the offenses of wrongful possession and use of marijuana and wrongful possession, use, and distribution of cocaine between 14 February and 8 March 1991.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF.  It states once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF.  It also allows for the transfer of a DA Form 2627 from the performance folder to the restricted folder of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.  Where the OMPF is electronic, the restricted section and the performance folder mean the restricted/performance folder of the interactive Personnel Electronic Management System.

DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the OMPF is to protect the interests of both the Army and the Soldier.  In this regard, the OMPF 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 OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and may not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

2.  The applicant received two Article 15s, the first on 10 July 1986 for wrongfully using marijuana while holding the rank/grade of SP4/E-4 and the second on 31 August 1989 for wrongfully operating a vehicle while drunk while holding the rank/grade of SGT/E-5.  The first is filed in the restricted folder of his OMPF and the second is filed in the performance folder of his OMPF.

3.  There is no Article 15 filed in his official records relating to offenses of wrongful possession and use of marijuana and wrongful possession, use, and distribution of cocaine between 14 February and 8 March 1991.  The documents he provided (DA Form 4833, CID letter, and State of North Carolina letter) are not relevant to the existing Article 15's.

4.  Since the Article 15 he referenced does not exist in his records and since he indicated he never received said Article 15 and his counsel believes he was cleared of any wrongdoing, there is neither an error nor an injustice in his case.

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 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)                                         AR20130020854



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ABCMR Record of Proceedings (cont)                                         AR20130020854



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