PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            2 May 2002
	DOCKET NUMBER:    AR2002069672

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		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 two Record of Proceedings Under Article 15, UCMJ (DA Form 2627) be removed from the restricted fiche (R-Fiche) of his Official Military Personnel File (OMPF).  

3.  The applicant states, in effect, that he deserved the nonjudicial punishment (NJP) when he received them, but no rank or money was taken from his pay and, he was told they would not go in his records if he did not violate the restrictions they contained.  He accepted the first NJP on 10 April 1987 and the second on 16 March 1994.  He also states that since these two NJPs, he had a break in service and held numerous positions of responsibility to include platoon sergeant, weapons squad leader, and drill sergeant.  

4.  The applicant’s military records show that he is currently serving on active duty at Fort Jackson, South Carolina, and holds the rank and pay grade of staff sergeant/E-6 (SSG/E-6).

5.  On 10 April 1987, while serving as a specialist/E-4 (SPC/E-4) in Germany, the applicant accepted NJP for two specifications of failing to go to his prescribed place of duty, accountability formations.  His punishment for these offenses was a suspended reduction to private first class/E-3.  The applicant was advised by his unit commander that the DA Form 2627 would be filed in the R-fiche portion of his OMPF, and that he had 5 calendar days to appeal the action.  The applicant elected not to appeal.  

6.  On 16 March 1994, while serving as a SSG/E-6 in Hawaii, the applicant accepted NJP for failing to go to his prescribed place of duty, physical fitness formation.  His punishment for this offense was a suspended forfeiture and 
14 days of restriction.  The applicant was advised by his unit commander that the DA Form 2627 would be filed in the R-fiche portion of his OMPF and that he had 
5 calendar days to appeal the action.  The applicant elected not to appeal.  

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM.  It states, in pertinent part, that the decision whether to file a record of NJP on the performance fiche of a soldier's OMPF rests with the imposing commander at the time punishment is imposed.

8.  Paragraph 3-37 contains instructions on the disposition of the DA Form 2627. Paragraph 3-37b(1) states, in pertinent part, that for soldiers in the rank of 
SPC or CPL and below, the DA Form 2627 will be filed locally in unit nonjudicial punishment files.  Such locally filed originals will be destroyed at the end of 
2 years from the date of imposition of punishment or on the soldier's transfer to another GCMCA, whichever occurs first.  

9.  Paragraph 3-37b(2) states, in pertinent part, that for all other soldiers, in the ranks of sergeant (SGT) 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 on the performance fiche or the restricted fiche in the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final.

CONCLUSIONS:

1.  The Board notes the applicant’s contention that two DA Forms 2627 should be removed from the R-Fiche portion of his OMPF and it finds partial merit in his request.  

2.  Although properly filed in accordance with the imposing commander’s intent and in accordance with regulations in effect at the time, the record of NJP accepted by the applicant in 1987, while serving in the rank of SPC/E-4, would be filed in the local unit file and would be destroyed after 2 years under current regulatory standards.  Therefore, the Board concludes, given the minor nature of the offense for which the applicant accepted the NJP, that these current standards should be applied and that it would be appropriate to remove the 
DA Form 2627, dated 10 April 1987, from his OMPF at this time. 

3.  However, the evidence of record confirms that the disposition and filing of the record of NJP accepted by the applicant on 16 March 1994, while he was serving in the rank of staff sergeant (SSG), was accomplished in accordance with applicable regulations in effect at the time.  Further, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the NJP process.  

4.  In addition, the Board finds that the filing determination made by the commander at the time the 1994 NJP was imposed is still valid under current regulatory standards.  Thus, it concludes that removing this DA Form 2627 from the applicant’s record is not appropriate at this time.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing the DA Form 2627, dated 10 April 1984, and related documents from the OMPF of the individual concerned.  

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

    FNE         WTM            CJP      GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		        Fred N. Eichorn
		        CHAIRPERSON

INDEX

CASE ID	AR2002069672	
SUFFIX		
RECON		
DATE BOARDED	2002/05/02	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  267	123.0700	
2.		
3.		
4.		
5.		
6.