IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090016729 


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).

APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his record be corrected by removing an Article 15 from his Official Military Personnel Files (OMPF).

2.  The applicant states, in effect, that the Article 15 he received in April 1996 has surpassed it limitation date and will be an unfair disadvantage before the upcoming E8 (master sergeant) promotion board.  

3.  The applicant provides no additional documents in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows his rank/grade at the time of the Article 15 was specialist (SPC)/E-4.  The applicant is currently serving in the rank of sergeant first class (SFC) E-7 with a date of rank of 1 March 2004.

2.   On 22 May 1996, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave from 1 April 1996 to 17 April 1996.  His punishment was reduction to specialist/pay grade E-4, suspended; a forfeiture of $651.00 per month for 2 months; and 45 days of extra duty.  The commander imposing the NJP directed that it be filed in the restricted fiche of the OMPF.

3.  Army Regulation 600-37 (Unfavorable Information) states that 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 individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

4.  Army Regulation 600-37 also states that records of non-judicial punishment may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant certainly has excelled as a Soldier as evidenced by his subsequent promotions.  However, removal of the UCMJ action from his restricted fiche, which may ultimately enable him to be appointed to the highest noncommissioned officer grade in the Army, may remove a perceived injustice for the applicant but would certainly create an injustice for the Army by placing him on a level playing field with Soldiers whose service was not tainted by such misconduct or lapses in integrity.

2.  In view of the foregoing, there is no error or injustice and there is no basis for granting the applicant's request.

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)                                         AR20090016729



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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