AR20160006086

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160006086

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x_____ ___x_____ ___x_____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160006086

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.

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160006086

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 DAForm2627 (Record of Proceedings Under Article15, UCMJ (Uniform Code of Military Justice)), dated 10 December 2013, and allied documents that are filed in the restricted section of his Official Military Personnel File (OMPF) in his Army Military Human Resource Record (AMHRR).

2. The applicant states the DA Form 2627 (along with the allied documents) is not filed in error; however, it is unjust that the records are available to be viewed. He states this renders the restricted section ineffective as a tool because it provides false hope to Soldiers to continue to seek career progression in the U.S. Army.

a. The record of nonjudicial punishment (NJP) has kept him from numerous career-enhancing assignments such as drill sergeant, recruiter, and warrant officer. He adds that he is aware that records in the restricted section of the OMPF are available for review by the Sergeant First Class (SFC), Headquarters, Department of the Army (HQDA), Promotion Selection Board (PSB). As a result, he anticipates the record of NJP will also hinder his chances for selection by the SFC HQDA PSB.

b. He states that he has accepted responsibility for his actions and the repercussions that followed. There are no other adverse or derogatory documents in his OMPF/AMHRR and he has received four Noncommissioned Officer (NCO) Evaluation Reports (NCOERs) with top ratings since the incident.

3. The applicant provides a copy of the DA Form 2627 and allied documents.

CONSIDERATION OF EVIDENCE:

1. The applicant had prior honorable enlisted service in the Army National Guard from 13 September 2006 through 22 November 2009. He was awarded military occupational specialty (MOS) 21E (Heavy Construction Equipment Operator).

2. The applicant enlisted in the Regular Army on 23 November 2009 and he is currently serving as a staff sergeant (SSG)/pay grade E-6 in MOS 13F (Fire Support Specialist). He was promoted to SSG effective 1 April 2013.

3. A review of the applicant’s OMPF/AMHRR revealed a DA Form 2627, dated
10 December 2013. It shows punishment was imposed for his misconduct under the UCMJ, Article 107 (two specifications), for, with intent to deceive:

* making a false official statement (i.e., “I had been placed on leave by the Ranger Training Brigade”) to a superior NCO on 6 September 2013
* signing an official record (i.e., a DA Form 31, Request and Authority for Leave, dated 11 July 2013), which was false and then known by the applicant to be false

a. The DA Form 2627 also shows the applicant: had been advised of his rights and afforded the opportunity to consult with counsel; did not demand a trial by court-martial; requested a closed hearing; did not request a person to speak in his behalf; and indicated that matters in defense, extenuation, and/or mitigation would not be presented.

b. On 10 December 2013, in a closed hearing, having considered all matters presented, the Commander, Headquarters and Headquarters Battery (HHB),
1st Battalion, 5th Field Artillery (1/5 FA), Fort Riley, KS, found the applicant was guilty of the misconduct.

c. His imposed punishment was 14 days of extra duty. Item 4b shows the imposing authority directed that the DAForm2627 be filed in the restricted section of the applicant’s OMPF.

d. The applicant indicated that he did not appeal the NJP.

e. The DAForm2627 and allied documents (20 pages) are filed in the restricted section of the applicant’s OMPF.
4. A further review of the applicant’s OMPF/AMHRR shows that he has received four DA Forms 2166-8 (NCOERs) covering the period 1 December 2012 through
4 December 2015.

a. The four NCOERs show the applicant’s raters consistently indicated that he possessed the Army Values and he received ratings of “excellence” and “success” in NCO responsibilities. The senior raters assessed his overall performance as “successful” (three “1” box checks and one “2” box check) and his potential for promotion and/or service in positons of greater responsibility as “superior” (four “1” box checks).

b. This review also revealed that neither the NCOER covering the period
1 December 2012 through 30 November 2013 nor the NCOER covering the period 1 December 2013 through 15 October 2014 makes any reference to the incident under review.

REFERENCES:

1. Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file.

a. Table B-1 (Authorized Documents) provides guidance for filing the
DA Form 2627. The DA Form 2627 will be filed in either the performance or restricted section of the OMPF, as directed in item 4b of the DA Form 2627.

b. The restricted section 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 may not be released without written approval from the Commander, U.S. Army Human Resources Command, or the HQDA selection board proponent. Documents in the restricted section 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.

2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 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.

DISCUSSION:

1. The applicant contends that the DAForm2627, dated 10 December 2013, and the allied document that are filed in the restricted section of his OMPF should be removed because the documents have kept him from numerous career-enhancing assignments and it has given him false hope with respect to career progression; he has accepted responsibility for his actions and it is unjust that the records are available to be viewed by HQDA boards since there are no other adverse or derogatory documents in his OMPF/AMHRR; and he has received favorable NCOERs since the incident.

2. The evidence of record shows the NJP was properly administered and the DAForm2627 and allied documents are properly filed in the restricted section of his OMPF.

3. The governing regulation provides that the commander must 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.

a. The commander who imposed the NJP against the applicant directed the DA Form 2627 be filed in the restricted (vice the performance) section of the applicant’s OMPF.

b. There is no reference to the misconduct in the performance folder of the applicant’s OMPF.

c. There are no provisions for removing a DA Form 2627 from the restricted folder of the OMPF because a Soldier was given a sense of false hope by the filing of the document.

d. It is acknowledged that the NJP may have prevented the applicant from eligibility/selection for certain special assignments and/or career progression. It is also acknowledged that the best interests of the U.S. Army are essential to the continued success of the institution. In this regard, the United States Government has determined that the resourcing required to maintain the U.S. Army is not the same as it was for past years. Thus, the U.S. Army has a responsibility to implement human resource management practices in order to comply with the decision to achieve reductions in human resource requirements. The HQDA policy decision to grant HQDA boards access to view the restricted folder of the OMPF/AMHRR is essential to support the effort to achieve the mandated human resource requirements.

4. By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal.

a. There is no evidence of record that shows the NJP was imposed in error or that was it unjust.

b. The applicant’s service since imposition of the NJP is noteworthy. However, the applicant failed to submit evidence of a compelling nature to show that the DA Form 2627 that is filed in the restricted section of his OMPF is untrue, in error, or unjust.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160006086

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160006086

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2