BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20160012708 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ ___x_____ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20160012708 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by removing the DA Form 2627, dated 23 August 2004, that is filed in the performance folder of his Official Military Personnel File. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing the DA Form 2627, dated 23 August 2004, from his Army Military Human Resource Record (finance restricted folder with access to the document limited to System Administrators only). 3. To ensure this decision results in no unintended harm to the individual concerned, this Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing. The Record of Proceedings and associated documents will not be filed in the individual's Official Military Personnel File or any other folder of the Army Military Human Resource Record. __________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: 13 October 2016 DOCKET NUMBER: AR20160012708 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 a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), dated 23 August 2004, that is filed in his Official Military Personnel File (OMPF). 2. The applicant states the DA Form 2627 is misfiled in the performance folder of his OMPF. a. He states Army Regulation 27-10 (Military Justice), paragraph 3-37 (Distribution and filing of DA Form 2627 and allied documents), provides filing instructions for DA Forms 2627. For Soldiers in the rank of specialist (SPC) or corporal (CPL), pay grade E-4 and below (prior to the imposition of punishment), the DA Form 2627 will be filed locally in the unit nonjudicial punishment (NJP) or unit personnel 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 General Court-Martial Convening Authority, whichever occurs first. b. The commander indicated "NA" [not applicable] for filing instructions; however, the DA Form 2627 is filed in the performance folder of his OMPF and this negatively affects his career. 3. In support of his request the applicant provides a copy of the DA Form 2627. CONSIDERATION OF EVIDENCE: 1. An NGB Form 22 (National Guard Report of Separation and Record of Service) shows the applicant enlisted in the Army National Guard (ARNG) of the United States and the Arkansas ARNG on 29 March 2002 and he was honorably discharged on 6 October 2010. 2. He enlisted in the Regular Army (RA) on 18 October 2010 for a period of 5 years. He is currently serving in the RA in the rank of staff sergeant (E-6). 3. A review of the applicant's OMPF revealed a DA Form 2627, initiated on 23 August 2004, imposed as punishment for his misconduct at Hot Springs, AR, on 18 July 2004, for violation of the UCMJ, Article 134 (Adultery). a. The DA Form 2627 shows the applicant was serving in the rank/grade of specialist/E-4. It also shows the applicant: (1) was advised of his rights and afforded the opportunity to consult with counsel; (2) did not demand a trial by court-martial; and (3) requested a closed hearing; a person to speak in his behalf was not requested; and matters in defense, extenuation, and/or mitigation were not presented. b. On 23 August 2004, in a closed hearing, having considered all matters presented, the Commander, 1st Battalion, 153rd Infantry Regiment, found the applicant was guilty of the misconduct. c. Item 5 (I direct the original DA Form 2627 be filed in the) shows the two possible responses (i.e., "Performance fiche" and "Restricted fiche of the OMPF") are lined-thru and the typed entry "NA." d. The punishment imposed consisted of reduction to private first class/pay grade E-3 and forfeiture of $792 pay. e. The applicant indicated that he would not appeal the NJP. f. Item 11 (Allied Documents and/or Comments) lists three (3) items. g. The DA Form 2627 is filed in the performance folder of the applicant's OMPF. The allied documents are not filed in his OMPF. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resources Records (AMHRR)), currently in effect, provides policies, operating tasks, and steps governing the AMHRR. Depending on the purpose, documents will be filed in one of six sections: performance, service, restricted, medical, flight, or State/ Territory. The Authorized Documents Listing provides guidance for filing the DA Form 2627 in the OMPF. It shows the DA Form 2627 will be filed in either the performance or restricted section of the OMPF, as directed by item 5 of the DA Form 2627. a. For Soldiers who are at the rank of SPC or CPL (E-4) and below, the original DA Form 2627 will be filed locally in the unit NJP or unit personnel 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 General Court-Martial Convening Authority, whichever occurs first. For these Soldiers, the imposing command should annotate item 5 of the DA Form 2627 as "NA." b. Additional folders within the AMHRR are contained in the integrated Personnel Electronic Records Management System (iPERMS) to assist the Army in preserving valid information on a Soldier for a specific period of time. These are non-OMPF folders and include finance and finance restricted folders. It shows the DA Form 2627 for E-4 and below will be filed in the finance restricted folder of the AMHRR if it affects rank or pay. Only file the Article 15 itself; no allied or supporting documents (the Article 15 is captured for the sole purpose of audit readiness). It also shows that access to this document is limited to System Administrators only. 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. DISCUSSION: 1. The applicant contends the DA Form 2627, dated 23 August 2004, that is filed in his OMPF should be removed because he held the rank of E-4 at the time the NJP was imposed and the imposing commander indicated that filing it in his OMPF was not applicable. 2. The evidence of record shows the DA Form 2627 is filed in the performance folder of the applicant's OMPF. 3. By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal. a. The evidence of record shows the applicant was serving in grade E-4 at the time and the DA Form 2627 should not have been filed in the performance folder of his OMPF. b. However, the punishment imposed by the commander affected the applicant's rank and pay. Thus, the appropriate filing of the DA Form 2627 is the finance restricted folder of his AMHRR (a non-OMPF folder) with access to the document limited to System Administrators only. c. The evidence of record does not support removal of the NJP from all of his official personnel files. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012708 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012708 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2