IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20150001272 


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)), dated 10 July 2002, from the restricted section of his Army Military Human Resource Record (AMHRR), also known as the Official Military Personnel File (OMPF). 

2.  The applicant states the Article 15 has served its intended purpose because the punishment was suspended and not vacated.  As a result of the Article 15, there have been zero recorded incidents within the last 13 years of service.  Additionally, the Article 15 has served as a learning tool for a young Soldier to maintain his composure, emotions, and military bearing at all times.  Removing the Article 15 from the restricted section of his OMPF will assist him in continuing to serve the Army at all levels.

3.  The applicant provides:

* a self-authored statement
* two letters of support
* DA Form 2627
* DA Form 4856 (Developmental Counseling Form)
* Orders 113-02
* a memorandum
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* seven DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a Regular Army sergeant first class (SFC) in military occupational specialty 13F (Fire Support Specialist).  

2.  On 17 July 2002, while holding the rank of staff sergeant (SSG), and in an open hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for one specification of disobeying a lawful order from an NCO and one specification of disrespect toward an NCO.  These offenses were in violation of Article 91 of the UCMJ.  His punishment consisted of forfeiture of $526.00, extra duty for 14 days, and restriction for 14 days, all were suspended to be automatically remitted if not vacated before 4 December 2002.

3.  The DA Form 2627 he was furnished shows he elected not to demand trial by court-martial and he did not elect to submit an appeal to the Article 15 or to submit additional matters.  His commanding officer directed the DA Form 2627 be filed in the restricted section his OMPF.

4.  A review of his OMPF reveals the DA Form 2627 is, in fact, filed in the restricted section of his file.

5.  The applicant provides:

   a.  a self-authored statement in which he asks the Board to note his promotion to SFC, his service in numerous duty positions of increased responsibility, and his receipt of the Bronze Star Medal, Meritorious Service Medal, and four Army Commendation Medals;

   b.  two letters of support for permanent removal of the DA Form 2627; and

   c.  seven DA Forms 2166-8 in which his rater rated him as "among the best" and his senior rater indicated his overall performance and potential for promotion and/or service in positions of greater responsibility was rated as "1/1." 

6.  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 3-6 addresses filing of 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 carefully weigh 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 sergeant 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 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.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for transfer of an Article 15 from the OMPF based on the record of NJP having served its intended purpose will be made to the Department of the Army Suitability Evaluation Board. The performance portion of the OMPF will, on approval of the member's application, be transferred to the restricted portion of the OMPF and the copy in the unit NJP file removed.

7.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.

	a.  This regulation states that depending on the purpose, documents will be filed in the AMHRR in one of three folders:  performance, service, or restricted.  This regulation shows the DA Form 2627 is filed in either the performance or restricted section of the AMHRR, as directed in item 5 of the DA Form 2627.

	b.  The restricted folder of the AMHRR 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 (HRC), or the Department of the Army Headquarters selection board proponent.  This regulation also provides that documents in the restricted folder of the AMHRR 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 AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant violated the UCMJ while serving as a SSG and subsequently accepted NJP on 17 July 2002.  The imposing commander directed filing the Article 15 in the restricted portion of his OMPF; the applicant elected not to appeal.  As such, the subject Article 15 is currently and properly filed in his OMPF.

2.  The contentions made by the applicant have been noted; however, he provides insufficient evidence to show he was erroneously issued the Article 15, that it is inappropriately filed in his OMPF, or that the punishment imposed against him was improper (and punishment was imposed, even if only suspended).  The applicable regulation does not allow for removal of NJP from the restricted portion of the OMPF for a record of NJP which has served its intended purpose; it only allows for transfer of documents from the performance portion to the restricted portion of the OMPF.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted portion of his OMPF as directed by the imposing commander.  There is insufficient evidence of record and the applicant provides insufficient evidence to show the DA Form 2627 is untrue or unjust.

4.  The purpose of maintaining the OMPF is to protect the interests of 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, 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 will not be 
removed from or moved to another part of the OMPF unless directed by an appropriate authority.

5.  The applicant appears to believe the presence of this Article 15 in the restricted portion of his OMPF may impact his career.  While this may be true, when an NJP action reflects moral turpitude or lack of integrity, or evidence of character deficiency or substantial breach of military discipline, the interests of the Army are compelling and in such cases the record should be filed in the OMPF.

6.  In light of the foregoing, he is not entitled to the 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 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)                                         AR20150001272





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001272



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1