PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  15 April 2003
	DOCKET NUMBER:  AR2003086772

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Ms. Yolanda Maldonado		Member	
	Mr. Richard T. Dunbar		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 that his records of punishment under Article 15, Uniform Code of Military Justice (UCMJ), dated 10 December 1986 and 1 April 1987 be removed from the Restricted (R) fiche of his Official Military Personnel File (OMPF).

3.  The applicant states that in accordance with regulation, Article 15s for pay grade E-4 (SPC/CPL) and below are filed locally in unit personnel files and destroyed after 2 years.  The Article 15s were placed on his R fiche as indicated in item 5 of his DA Form 2627 (Record of proceedings under Article 15, UCMJ).  However, by regulation item 5 should be "not applicable (NA)."  He believes that his Article 15s were filed in error and were unjust due to his record since the incidents.  In support of his application, he submits copies of his Article 15s, five Noncommissioned Officer Evaluation Reports (NCOERs), and an abstract of  Army Regulation 27-10, dated 6 September 2002. 

4.  The applicant’s military records show he enlisted on 29 January 1986 and continues to serve on active duty in the rank of master sergeant (MSG).

5.  On 10 December 1986, while serving in the pay grade of E-3, he was punished under Article 15, UCMJ, for wrongful use of marijuana.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, and 34 days extra duty.

6.  On 1 April 1987, while serving in the pay grade of E-2, he was punished under Article 15, UCMJ, for failure to obey a lawful regulation by smoking in bed and destruction of government property.  His punishment consisted of 14 days extra duty and restriction.  

7.  Each imposing commander recommended that the Article 15, UCMJ, be filed on the R fiche of the applicant’s OMPF.

8.  He was promoted to MSG/E-8 effective 1 April 2002.

9.  His overall record shows no other disciplinary violations, that he has received outstanding evaluations, and he has progressed to the senior enlisted grade of MSG.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that 
file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  It also states that Army Board for Correction of Military Records (ABCMR) documents that approve or deny a request will be filed on the R fiche of the OMPF. 

11.  It also states that Article 15s, UCMJ, issued on or after 1 November 1982, for soldiers in the rank of specialist/corporal (SPC/CPL) or below will be filed on the Performance (P) or R fiche as directed by item 5 of the DA Form 2627. 

12.  Army Regulation 27-10, in effect at the time, prescribed the guidelines for the filing of nonjudicial punishment.  Paragraph 3-37b (2) stated, in pertinent part, that the decision to file the original DA Form 2627 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 and would be indicated in item 5, of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).  It also stated that a copy would be filed in the unit personnel files and destroyed at the end of 2 years from date of punishment.

13.  The same regulation now in effect states that Article 15s issued to soldiers in the rank of SPC/CPL will be filed locally in unit nonjudicial punishment or unit personnel files.  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 general court-martial convening authority (GCMCA), which ever occurs first.  For these soldiers, the imposing commander should annotate in item 5 of the DA Form 2627 the entry "Not applicable (N/A)."  The decision to file the original DA Form 2627 on the P or R fiche of the OMPF will be directed by the imposing commander at the time the punishment is imposed.

CONCLUSIONS:

1.  The applicant’s record of punishment under Article 15, UCMJ, dated 10 December 1986 and 1 April 1987, were properly filed on the R fiche of his OMPF in accordance with applicable regulations.  

2.  Considering the nature of the 1 April 1987 offenses involved, and the fact that the punishment has served the purpose for which it was intended, in the interest of justice, it would be appropriate to remove the record of punishment dated 1 April 1987 from the applicant’s R fiche of his OMPF.  The applicant’s overall record supports his request.  

3.  The applicant's offense listed on his record of punishment dated 10 December 1986 was too serious to warrant removal at this time.  Therefore, he is not entitled to removal of his record of punishment dated 10 December 1986 from his R fiche of his OMPF.

4.  The Board notes the applicant's contention that Army Regulation 27-10 now in effect stated that Article 15s issued to soldiers in the rank of SPC/CPL would be filed locally in unit nonjudicial punishment or unit personnel files and locally filed originals would be destroyed after 2 years and that item 5 of the DA Form 2627 should show the entry "NA."  It was also noted that his Article 15s were administered over 16 years ago.  Regulation in effect at that time stated that filing would be determined by the imposing commander in item 5 of the DA Form 2627 and that a copy would be filed in the unit personnel files and destroyed at the end of 2 years from date of punishment.  Therefore, his Article 15s were not filed in error and were not unjust based on his record since the incidents.

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case for the individual concerned be corrected by expunging his record of punishment under Article 15, UCMJ, dated 1 April 1987 from his R fiche of his OMPF.

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

BOARD VOTE:  

__jl____  ___ym___  __rd___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Joann Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2003086772	
SUFFIX		
RECON		
DATE BOARDED	20030415	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  267		
2.		
3.		
4.		
5.		
6.