IN THE CASE OF:	  

		BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140008460 


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 the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 9 July 2005 from the restricted folder of his Official Military Personnel File (OMPF).

2.  The applicant states the DA Form 2627 was erroneously filed in the restricted folder of his OMPF because the imposing commander gave him a letter of reprimand as punishment.  He contends the restricted folder of his OMPF also includes a DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ) which clearly shows a mistake was made at the time the nonjudicial punishment (NJP) was imposed.

3.  The applicant provides the DA Form 2627 and DA Form 2627-2.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 May 2000.  He was promoted to the rank and grade of staff sergeant (SSG)/E-6 on 1 December 2004.

2.  On 9 July 2005 while serving in the rank of SSG as a recruiter, he accepted NJP for:

	a.  violating a lawful general regulation by wrongfully falsifying a traffic ticket and submitting the false traffic ticket in support of a contract renegotiation request for R____ N____;

	b.  wrongfully soliciting a police officer to create a fraudulent public record by creating a false traffic violation charge against R____ N____; and

	c.  conspiring to commit an offense under the UCMJ by submitting a false document and in order to effect the object of conspiracy providing a traffic citation issued to him, which was falsified and submitted in support of a contract renegotiation request for R____ N____.

3.  The punishment consisted of a written reprimand.  He did not appeal the punishment.

4.  The imposing commander directed the filing of the DA Form 2627 in the restricted folder of the applicant's OMPF.

5.  A DA Form 2627-2, dated 22 November 2005, shows the NJP imposing commander directed setting aside the punishment of a written reprimand.  The imposing commander also indicated the written reprimand and the Article 15 were to be placed in the applicant's local file with the intent of not hurting his promotion.

6.  A review of his OMPF reveals the DA Form 2627 with allied documents and the DA Form 2627-2 are filed in the restricted folder of his OMPF.

7.  The applicant was promoted to the rank and grade of sergeant first class (SFC)/E-7 on 1 March 2008 and he is currently serving on active duty in the rank of SFC.

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.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive 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:

	a.  Paragraph 3-28 addresses setting aside and restoration.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor in command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case.  If all findings are set aside, then the Article 15 itself is set aside and removed from the Soldier's records.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15 or punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

	b.  Paragraph 3-37b(1)(a) states that for Soldiers in the ranks of sergeant (SGT) and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance folder or restricted folder of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.  Additionally, records directed for filing in the restricted folder will be redirected to the performance folder if the Soldier has other records of NJP reflecting misconduct in the rank of SGT or higher that have not been wholly set aside and recorded in the restricted folder.

	c.  Paragraph 3-42b addresses the transfer of punishment wholly set aside or changes of status.  It states that all DA Forms 2627 of commissioned officers and enlisted Soldiers filed in the OMPF reflecting that punishments have been wholly set aside since 1 September 1979 will routinely be transferred to the restricted folder.

	d.  Paragraph 3-43 contains guidance for the transfer or removal of DA Forms 2627 from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records.  It further indicates there must be evidence that demonstrates error or injustice to a degree justifying removal.

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. The regulation identifies those documents that are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  performance, service, or restricted.  It shows the DA Form 2627 is filed in either the performance or restricted folder of the OMPF as directed by the imposing commander in the DA Form 2627.

10.  Army Regulation 600-80-104 also provides that the restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent.  It further provides that documents in the restricted folder of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the DA Form 2627 imposed on 9 July 2005 should be removed from the restricted folder of his OMPF because a DA Form 2627-2 clearly shows a mistake was made at the time the punishment was imposed.

2.  The DA Form 2627-2 indicates the NJP imposing commander directed setting aside the punishment consisting of a written reprimand.  However, there is no evidence indicating the commander determined the findings which led to the imposition of the DA Form 2627 were untrue or unjust.

3.  The commander also indicated the Article 15 was to be placed in the applicant's local file with the intent of not hurting his promotion.  However, the governing regulation provides that for Soldiers in the ranks of SGT and above, the original DA Form 2627 will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance folder or restricted folder of the OMPF will be made by the imposing commander at the time punishment is imposed.

4.  The evidence of record confirms the applicant accepted NJP for violating lawful general regulations and for wrongfully soliciting a police officer to create a fraudulent public record.  The available evidence also confirms his NJP proceedings were conducted in accordance with law and regulation and the DA Form 2627 is properly filed in the restricted folder of his OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show the DA Form 2627 was imposed in error or that it was unjust.

5.  The applicant failed to demonstrate the NJP action was unjust or untrue, or that removal of the DA Form 2627 would be in the best interest of the Army.

6.  Based on the foregoing, there is no basis to grant 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 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)                                         AR20140008460



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ABCMR Record of Proceedings (cont)                                         AR20140008460



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