IN THE CASE OF:	  

		BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140014642 


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 transfer of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 16 April 2008, and DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 30 October 2007 to 30 April 2008, (hereafter referred to as the contested NCOER) from the performance file to the restricted file of his Official Military Personnel File (OMPF).  He further requests removal of Orders 19-12, issued by Headquarters, 4th Brigade Combat Team (Airborne), dated 19 January 2006, from his OMPF.

2.  The applicant states:

   a.  He has done an immense amount of work in the past six years to move past the incident.  He has conformed and abided by all punishment and corrective training with regard to this mistake.  He has attended an NCO Education System school graduating with a grade point average in the 90th percentile.  He has graduated from several military specialty schools earning qualifications and/or badges to improve him and become a greater asset to the military.  He further states he has had six evaluation reports with no derogatory information over the entire course of this period in addition to being awarded recognition for his service and conduct in the training of his Soldiers.

   b.  He wishes to continue his military service and maintain the progress and momentum he has continued to work towards.  While there is no excuse for his actions, when the incident occurred he had just redeployed from Iraq after experiencing great loss and he made an extremely poor decision while experiencing a degraded sense of self.  He has gone to great lengths to atone for his actions and he is truly appreciative of this opportunity to return to a level playing field.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) NCO who enlisted in the RA on 13 April 2000.  

2.  The applicant's records contain Orders 19-12, issued by Headquarters, 4th Brigade Combat Team (Airborne), 25th Infantry Division, dated 19 January 2006, which show he was promoted to the rank/grade of staff sergeant (SSG)/E-6 effective 1 February 2007.  The orders are filed in the performance section of his OMPF. 

3.  On 16 April 2008, in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using D-Methamphetamines between 23 and 28 January 2008, in violation of Article 112a, UCMJ.

4.  His punishment consisted of:

* reduction to sergeant (SGT)/E-5
* forfeiture of $1,303.00 per month for 2 months
* 45 days of extra duty
* 45 days restriction

5.  The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's OMPF.  The applicant did not demand trial by court-martial and elected not to appeal his punishment.

6.  A review of his OMPF reveals the DA Form 2627 is filed in the performance section of his OMPF.  

7.  At the time of the contested NCOER, he was assigned as a Squad Leader.  His rater was SSG CU, the Platoon Sergeant; his senior rater was Captain (CPT) NJB, the Platoon Leader; and his reviewer was CPT SCL, the Company Commander.   

8.  The applicant received a Relief for Cause NCOER that covered 6 months of rated time from 30 October 2007 through 30 April 2008.  This contested NCOER shows in:
	
	a.  Part IVa (Army Values) the rater checked the "Yes" blocks for all values except "Integrity."  He checked "No" for "Integrity" and entered the bullets "Soldier tested positive for illegal drugs" and “Conduct off duty reveals questionable character.”
	
	b.  Part IVb (Values/NCO Responsibilities – Competence) the rater checked the "Success" block and entered three positive comments.

	c.  Part IVc (Values/NCO Responsibilities – Physical Fitness and Military Bearing) the rater checked the "Success" block and entered two positive comments.

	d.  Part IVd (Values/NCO Responsibilities – Leadership) the rater checked the "Needs Some Improvement" block and entered the bullet “abused the Army drug and alcohol policy by testing positive on the company urinalysis test” and two positive comments.

	e.  Part IVe (Values/NCO Responsibilities – Training) the rater checked the "Success" block and entered three positive comments.

	f.  Part IVf (Values/NCO Responsibilities – Responsibility and Accountability) the rater checked the "Needs Some Improvement" block and entered the bullet "the rated NCO has been notified of the reason for the relief" and two positive comments.

	g.  Part Va (Overall Performance and Potential – Rater) the rater checked the "Fully Capable" block and entered three positions in which the applicant could best serve the Army at his current or next higher grade.

	h.  Part Vc (Overall Performance and Potential – Senior Rater – Overall Performance) the senior rater checked the "Fair" block.

	i.  Part V(d) (Overall Performance and Potential – Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) the senior rater checked the "Fair" block and entered the bullets: 

* do not promote 
* do not send to BNCOC [Basic NCO Course]
* overall performance was tarnished because of misconduct, capable of being a good NCO
* not ready for additional responsibility, recommend NCO receive additional training in NCO competencies

9.  The contested NCOER was signed by the applicant's rating officials on 1 and 5 May 2008, respectively.  The applicant signed on 5 May 2008.  The report is currently filed in the performance section of his OMPF. 

10.  His record shows that since his incident in 2008, he successfully completed BNCOC, Jumpmaster, and Battle Staff NCO courses as well as receiving various awards and a promotion to the rank/grade of SSG/E-6.

11.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  It states that once a document is placed in the OMPF, 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.  Appendix B, Documents Required for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System, lists the website which shows promotion orders are required to be filed in the OMPF.   

12.  Army Regulation 600-37 (Unfavorable Information) provides that 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 individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.  

13.  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.  Prompt action is essential for NJP to have the proper corrective effect.  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 3-6 addresses the filing of an NJP and provides that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of 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 section or restricted section 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.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states to support a request for transfer, the person must submit substantive evidence that the intended purpose of the Article 15 has been served and that transfer of the record is in the best interest of the Army.

14.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA Form 2166-8.  
	
   a.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On one hand, this evaluation will give full credit to the rated Soldier for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards and career managers can make intelligent decisions.  

	b.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, a SSG, violated the UCMJ and subsequently accepted NJP on 16 April 2008.  The imposing commander directed the Article 15 be filed in the performance section of his OMPF.  He elected not to appeal his punishment.

2.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the performance section of his OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides no evidence to show that the DA Form 2627 is untrue or unjust.  

3.  Nevertheless, since he received his Article 15 he has revealed nothing but a progressively noteworthy advancement both in achievements and maturity.  He has proven through performance that he is dedicated to bettering himself and generating a positive influence on those with whom he associates.  His attitude, which is normally recognized as a major ingredient in the success or achievement of an individual, is that of an NCO who despite the set-back has soldiered on with a strong desire to serve and grow.

4.  In view of the foregoing, it is clear that the applicant has learned from his previous mistake and the Article 15 has served its intended purpose.  Therefore, in the interest of justice, the applicant's Article 15 should be transferred to the restricted section of his OMPF.

5.  The governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.
6.  The contested NCOER appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  There is no evidence the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  More importantly, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did.

7.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

8.  In this case, there is no evidence that shows the contested NCOER is unjust, in whole or in part, untrue, contains a material error, or is inappropriately filed in his OMPF.  To the contrary, the contested NCOER is an accurate depiction of the applicant's performance during the rating period.  Further, NCOERs are not authorized documents for appeal based on intended purpose served.  Accordingly, there is an insufficient basis to grant the requested relief.

9.  With regard to the removal of Orders 19-12, issued by Headquarters,          4th Brigade Combat Team (Airborne), dated 19 January 2006, from his OMPF, the purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, assignments, duty performance, and evaluation periods and any corrections to other parts of the OMPF.  Once placed in the performance folder of the OMPF, the document becomes a permanent part of that file and will not be removed or transferred to the restricted folder of the OMPF unless directed by an appropriate authority.

10.  The Army has an interest in maintaining the accuracy of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  As required by the applicable regulation, the order originally promoting him to the rank/grade of SSG/E-6 effective 1 February 2007 is properly filed in the performance folder of his OMPF.  There does not appear to be an error or an injustice.  Therefore, he is not entitled to the requested relief.  




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 transferring the contested Article 15 from the performance section to the restricted section of his OMPF.

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 transferring the contested NCOER from the performance section to the restricted section of his OMPF and removing Orders 19-12 from the performance section of his OMPF.  




      _______ _   __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)                                         AR20140014642



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ABCMR Record of Proceedings (cont)                                         AR20140014642



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