PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           14 MARCH 2002
	DOCKET NUMBER:   AR2001061379

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Roger W. Able		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his August 1991 DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be expunged from his OMPF (Official Military Personnel File).  He states, in effect, that the form should not have been filed in his OMPF because he was serving in pay grade E-4 at the time of receipt. He also notes that promotion boards now have access to information in the restricted fiche and as such retention of the UCMJ action in his file could “adversely” impact his promotion potential.

3.  Records available to the Board indicate the applicant initially entered active duty on 27 July 1988.  In August 1991, while serving in pay grade E-4, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order from a noncommissioned officer.  The record of NJP indicates the applicant was told, “to show proof of insurance for [his] privately owned vehicle.”  

4.  His punishment included reduction to pay grade E-3, 14 days of extra duty, 14 days of restriction, and forfeiture of $238.00 for one month, which was suspended for 6 months.  The commander imposing punishment directed that the NJP be filed in the applicant’s performance fiche by initialing that portion of the DA Form 2627 (item 5).  However, the item was subsequently lined through.

5.  The 25 January 1990 edition of Army Regulation 27-10, which establishes the policies and provisions for the filing of DA Forms 2627, states that records of nonjudicial punishment for soldiers in pay grade E-4 and below will be filed locally in unit nonjudicial punishment files.  For these soldiers, the imposing commander should annotate item 5 of the DA Form 2627 as “Not Applicable (N/A).”  

6.  Notwithstanding the provisions of Army Regulation 27-10, the applicant’s August 1991 UCMJ action was filed in the performance portion of his OMPF.  In 1998, however, the DASEB (Department of the Army Suitability Evaluation Board) directed that 1991 record of nonjudicial punishment be moved to the applicant’s restricted fiche.  The UCMJ action, the applicant’s appeal to the DASEB, and the DASEB decision are all currently filed on the applicant’s restricted fiche.

7.  The applicant was promoted to pay grade E-6 in April 1997 and would have been considered for promotion to pay grade E-7 in 1999.  Army Regulation 600-8-104 states that although not a routine procedure, the restricted fiche may be released to DA selection boards.  The board president will request permission 

from the Office of the Deputy Chief of Staff for Personnel to review specific restricted information when he or she believes the information is crucial to the selection process.  The board president must make his request in writing.  Disciplinary information filed on the restricted fiche is only routinely provided to the “Command Sergeant Major/sergeant major (CSM/SGM), SGM Academy selection and CSM/SGM retention boards.”

CONCLUSIONS:

1.  The evidence confirms that the applicant’s August 1991 DA Form 2627 was erroneously filed in his OMPF.  

2.  While the transfer of the DA Form 2627 from the applicant’s performance fiche to his restricted fiche by the DASEB was within their authority, the Board concludes that the form should never have been filed in the OMPF and as such it should be entirely expunged from the applicant’s file.

3.  The Board also concludes that had the DA Form 2627 never been inappropriately filed in the applicant’s OMPF there would not have been any need for the DASEB to act and as such no restricted fiche would ever have been generated.  In view of this fact the Board concludes it would be appropriate, and in the interest of justice, to not only expunge the DA Form 2627 but also to expunge all documents on the restricted fiche associated with the DASEB action.

4.  There is no evidence that any selection boards considered the applicant’s record of nonjudicial punishment and as such there is no requirement to refer the applicant’s records to a Special Selection Board for reconsideration of a previous nonselection.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by expunging the August 1991 record of NJP (DA Form 2627) from the OMPF of the individual concerned;

b.  by expunging all documents associated with the 1998 DASEB action which transferred the August 1991 DA Form 2627 from the applicant’s performance to his restricted fiche, and from all other Army records apart from the records of this Board; and

c.  following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this case be returned to the Board for permanent filing so as not to create another restricted fiche for the applicant.

BOARD VOTE:  

__JHL __   __WTM _  __RWA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Joann H. Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2001061379	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020314	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.