IN THE CASE OF:	  

		BOARD DATE:	 3 March 2015 

		DOCKET NUMBER:  AR20150002050 


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 26 July 2006, from his Official Military Personnel File (OMPF).  

2.  The applicant states:

* he received a company grade Article 15 on 26 July 2006
* the Article 15 has been filed in the restricted section of his OMPF since 2006
* he understands that any company grade Article 15 is removed after a permanent change of station or after a number of years have passed
* the filing of the Article 15 is hindering his potential for future promotions 

3.  The applicant does not provide any additional evidence. 

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.  The applicant enlisted in the Regular Army (RA) on 8 October 2002.  He has continued his RA service through reenlistments, and he was promoted to staff sergeant (SSG)/pay grade E-6 effective 1 December 2008. During the period in question he was performing principal duty as a company training noncommissioned officer in rank/pay grade sergeant/E-5.  

3.  The restricted portion of his OMPF contains a DA Form 2627 showing that, on 26 July 2006, his battalion commander informed him he was considering whether he should be punished under Article 15, UCMJ, for unlawfully grabbing A______ M____ on the neck and arms.

4.  The DA Form 2627 also shows he was advised of his rights and afforded the opportunity to consult with counsel.

	a.  He did not demand a trial by court-martial.  He requested a closed hearing and did not request to have anyone to speak in his behalf.  

	b.  On 26 July 2006, having considered all matters presented, the Commander, Headquarters and Headquarters Company, 1st Armored Division, Germany, found the applicant was guilty of the misconduct.  The imposing authority directed the DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The following punishment was imposed:  a forfeiture of       $473 pay, suspended, to be automatically remitted if not vacated before            24 September 2006; extra duty for 15 days; and restriction for 14 days.  He did not appeal the findings.

5.  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.  Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case a clear injustice has resulted.

	b.  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 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.

	c.  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 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.

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of his DA Form 2627, dated 26 July 2006, from his OMPF was carefully considered.

2.  The evidence of record confirms the applicant violated the UCMJ while serving as a sergeant and he subsequently accepted NJP on 26 July 2006 for unlawfully grabbing A______ M_____ on the neck and arms.  The imposing commander directed filing the Article 15 in the restricted section of his 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 no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust.  

4.  In order to remove a document from the 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.

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)                                         AR20150002050



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ABCMR Record of Proceedings (cont)                                         AR20150002050



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