IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140019633 


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 his record of nonjudicial punishment (NJP) and all associated documents from the Restricted folder of his Official Military Personnel File (OMPF).

2.  The applicant states that after receiving NJP, he went above and beyond the call of duty to attain a very successful career.  He indicates he:

   a.  obtained an associate's and bachelor's degree;
   
   b.  graduated as the distinguished honor graduate from his Advanced Noncommissioned Officers Course; and
   
   c.  completed other service school courses to further his career development and progression.

3.  The applicant provides copies of:

* five DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* two DA Forms 1059 (Service School Academic Evaluation Report)
* three college transcripts
* six course completion certificates 


CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving as a sergeant first class (SFC), pay grade E-7, in the Regular Army.

2.  On 21 February 2008, while holding the rank/pay grade of staff sergeant (SSG/E-6), he accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 92 for wrongfully fraternizing with a female Soldier serving in the rank of private (PVT/E-1) during initial entry training (IET).

3.  His punishment included a forfeiture of $1018.00 pay and a suspended reduction to sergeant/E-5.  The imposing commander directed filing the original DA Form 2627 in the Performance folder of his OMPF.  The applicant did not appeal his punishment.

4.  A review of his OMPF confirmed the subject NJP is filed in the Performance folder as directed by the imposing commander.  The subject NJP and associated documents are also filed in the Restricted folder of his OMPF.

5.  The applicant provides five NCOERs that document the ratings he received from 1 June 2009 through 31 May 2013.  Each of these reports was very favorable and show he received an "among the best" rating from each rater and each of the senior raters placed him in the number one block (superior and successful) for overall performance and potential.

6.  He provides two DA Forms 1059 which shows he exceeded course standards in the Battle Staff NCO and Advanced NCO courses.  He also provides transcripts that show he obtained a Bachelor's and Associate's degree.

7.  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 non-punitive 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 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.  It further states:

	a.  A commander's decision whether to file a record of NJP in the Performance or Restricted folder 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.  For Soldiers in the ranks of sergeant and above, the original copy of the NJP will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the Performance 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.

	c.  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.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF.

	a.  It 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 NJP is filed in either the Performance or Restricted folder of the OMPF as directed in item 5 of the NJP.

	b.  It 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 folder 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.  This paragraph also 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 his OMPF should be corrected by removing the NJP imposed on 26 August 2003 from the Restricted folder.  He contends he went above and beyond the call of duty to attain a very successful career after he received the NJP.

2.  The evidence of record confirms he accepted NJP for wrongfully fraternizing with an IET Soldier.  The imposing commander directed filing the NJP in the Performance folder of his OMPF.

3.  His NJP proceedings were conducted in accordance with law and regulation and his NJP is properly filed in his OMPF as directed by the imposing commander.  There is no evidence of record and he provides none to show the contents of the NJP is untrue or unjust.

4.  In order to remove a document from his OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  In the absence of an error or an injustice, there is no reason to remove it from his records.

5.  In view of the foregoing, the applicant's request should be denied.

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 that 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)                                         AR20140019633





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ABCMR Record of Proceedings (cont)                                         AR20140019633



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