IN THE CASE OF: BOARD DATE: 12 January 2012 DOCKET NUMBER: AR20110011439 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 that: * an invalid flag, dated 22 June 2006, be removed from his records * the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 8 July 2006, be expunged from his Official Military Personnel File (OMPF) or placed in the restricted section 2. The applicant states: * the records posted in the interactive Personnel Electronic Records Management System (iPERMS) are incomplete due to a pattern of mishandling * the mishandling of his records has adversely impacted his military career and continues to have a negative effect on his civilian career, employment opportunities, and his family's access to benefits * he and his family earned the right to benefits through their sacrifices over more than a 30-year period * item 5 of his DA Form 2627 indicates it would be filed in the restricted section of the OMPF * on 13 May 2011, he was advised by the U.S. Army Reserve Command (USARC) G-1 that he was no longer a troop program unit (TPU) Soldier * he does not recall seeing a DA Form 268 initiating the flag and believes procedures were not followed by personnel responsible for the proper initiation, maintenance, and removal of the flag * he was unable to transfer his Post 9/11 GI Bill benefits to his spouse and child due to an adverse flag dated 22 June 2006 * the flag should be removed when a Soldier is released without charges, charges are dropped, or punishment is complete 3. The applicant provides: * self-authored statements * an extract of DA Form 2627 * reassignment orders * 15 pages of email 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. After enlisted service in the Army National Guard, the applicant was appointed as a second lieutenant in the Army National Guard on 18 June 1988. 3. On 12 April 2006, the applicant was counseled and advised of his commander's intent to impose punishment under the provisions of Article 15, UCMJ. 4. On 8 July 2006, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for wrongfully using his Bank of America issued Government Travel Card. His punishment consisted of a forfeiture of $407. The imposing commander directed this Article 15 be filed in the restricted section of his OMPF. Furthermore, the applicant elected not to appeal his punishment. 5. On 6 October 2010, the applicant was notified of his non-selection for promotion (first time) to lieutenant colonel. 6. On 25 July 2010, an Involuntary Separation Board met and recommended the applicant be separated with a general discharge. 7. On 25 March 2011, the approval authority concurred with the findings and recommendations of the Involuntary Separation Board. 8. On 24 April 2011, the applicant was discharged from the USAR with a general discharge. 9. A review of his OMPF reveals the DA Form 2627, dated 8 July 2006, is filed in the restricted section of his OMPF. 10. There are no flags in the applicant's OMPF. 11. 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. Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF. It states 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. Thereafter, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF. 12. 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. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial: a. Paragraph 3-6 addresses the filing of an NJP and provides, in pertinent part, 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. b. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF. It states, in pertinent part, 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. 13. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF. This regulation states that only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted. Table 2-1 (Composition of the OMPF) shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed in Item 5 of the DA Form 2627. 14. Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides, in pertinent part, that 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 will not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army selection board proponent. This paragraph also provides that 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. 15. Army Regulation 15-185 (Army Board for Correction of Military Records) provides that an application for correction of military records, associated documents, and the decision pertaining thereto will normally be filed in the OMPF of the individual concerned. In those cases where such action would tend to nullify the relief provided the documents should be returned to the Board for permanent filing. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for removal of a flag and expunging the Article 15 from his records were carefully considered. 2. The available evidence confirms the applicant, a Reserve commissioned officer, violated the UCMJ and subsequently accepted NJP on 8 July 2006 for wrongfully using his Bank of America Government Travel Credit Card. The imposing commander directed that this Article 15 be filed in the restricted section of his OMPF. He elected not to appeal his punishment. 3. The applicant's 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 the applicant's OMPF as directed by the imposing commander. There is no evidence of record and the applicant provides no evidence to show that his DA Form 2627 is untrue or unjust. In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. 4. The purpose of maintaining the OMPF is to protect the interests of both the Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and may not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. 5. Although the applicant contends his records contain a flag, a review of his OMPF shows the Article 15 was placed in the restricted section of his OMPF. There is no flag or other derogatory information in the applicant's OMPF. 6. In the absence of compelling evidence showing the NJP the applicant received was invalid or unjust, there is no basis for granting the relief he requests. 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) AR20110011439 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110011439 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1