IN THE CASE OF:  	  

		BOARD DATE:  23 October 2014	  

		DOCKET NUMBER:  AR20140004961 


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, in effect, that the record of his nonjudicial punishment (NJP) be removed from his Official Military Personnel File (OMPF).

2.  The applicant states he received a company grade NJP that is filed in his personnel file.  It is hindering his ability to obtain a better paying job.  He has been turned down from two law enforcement jobs even after disclosing the NJP.  He feels he has more than paid for his mistake and has learned a valuable lesson from the whole experience.

3.  The applicant provides no additional documentation.

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.  On 22 March 2007, the applicant enlisted in the Regular Army.  He was trained as a military police.  On 22 March 2009, he was advanced to specialist, pay grade E-4.

3.  On 22 July 2009, the applicant accepted NJP for making a false official statement, with the intent to deceive, by saying that he had an accident with his patrol vehicle.

4.  The applicant’s punishment included a reduction to private first class, pay grade E-3, extra duty for 14 days (suspended), and restriction for 14 days (suspended).

5.  Because the applicant was a specialist, pay grade E-4 at the start of the NJP proceedings, the imposing commander did not direct filing of the NJP in his OMPF.

6.  The applicant’s OMPF contains an administrative separation packet showing he had failed to control his weight.  This packet contains a copy of the NJP.

7.  On 2 August 2010, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  His 
DD Form 214 shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations) chapter 18 for weight control failure.  He received an honorable characterization of service and had completed 3 years, 
4 months, and 11 days of creditable active duty service.

8.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.

   a.  It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP.
   
   b.  It provides that the use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.
	c.  It provides that for Soldiers with less than 3 years of service, who are in pay grade E-4 and below, the NJP will be filed locally in unit NJP files and will be destroyed at the end of 2 years or on transfer to another General Court-Martial Convening Authority.  The DA Form 2627 (Record of Proceedings Under Article 15, Uniformed Code of Military Justice (UCMJ)) will be annotated with the term "Not Applicable." 

	d.  Applications for the removal of the NJP from the OMPF based on an error or injustice will be submitted to the ABCMR.  It further states that there must be clear and compelling evidence to support removal of a properly-completed, facially-valid NJP from a Soldier's record by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the record of his NJP should be removed from his OMPF because it is hindering his ability to obtain better employment.

2.  The evidence of record confirms the applicant accepted NJP for misconduct. He accepted the subject NJP and was reduced to private first class, pay 
grade E-3.

3.  Because he was a specialist, pay grade E-4 with less than 3 years of service at the start of the NJP proceedings, the resulting NJP was not authorized for filing in his OMPF.  Accordingly, the imposing commander did not direct such filing.

4.  However, the applicant was subsequently released from active duty due to his failure to control his weight.  These administrative proceedings normally look at the Soldier’s entire service record in order to ensure a fair determination.  As a result, a copy of the subject NJP was made a part of the administrative separation packet.  While there was no error with the processing of the administrative separation, the subsequent filing of the subject NJP was unnecessary and inappropriate because it was counter to the intent of the governing regulation for filing an NJP rendered to a junior Soldier.

5.  In view of the above, and as a matter of equity, it would be appropriate to remove the subject NJP from the applicant’s OMPF.



BOARD VOTE:

____X___  ____X___  ____X__  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the DA Form 2627 from the applicant’s administrative separation packet currently filed in his Official Military Personnel File.

2.  The Board further recommends that these proceedings not be filed in the applicant's Official Military Personnel File.



      _______ _   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)                                         AR20130020726



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ABCMR Record of Proceedings (cont)                                         AR20140004961



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