RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 17 February 2005
DOCKET NUMBER: AR20040002747
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. Thomas D. Howard | |Chairperson |
| |Mr. John Infante | |Member |
| |Ms. Maribeth Love | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that a DA Form 2627 (Record of
Proceedings Under Article 15, UCMJ) be removed from the restricted portion
(R-Fiche) of his Official Military Personnel File (OMPF).
2. The applicant states, in effect, that he was young when he received the
Article 15 and has learned from his mistakes. He further states that it is
over five years old and he now requests this bad mark be removed from his
record.
3. The applicant provides no documentary evidence in support of his claim.
CONSIDERATION OF EVIDENCE:
1. The applicant’s military records show that he is currently serving on
active duty in Europe and he holds the rank of sergeant first class (SFC).
2. On 15 March 1995, while serving as a sergeant (SGT) at Fort Lewis,
Washington, the applicant accepted nonjudicial punishment (NJP) for
wrongfully having sexual intercourse with a female specialist (SPC) who was
not his wife. His punishment for this offense included a suspended
reduction to SPC. His unit commander advised the applicant 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.
3. 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.
4. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant request to remove a DA Form 2627 from the R-Fiche portion
of his OMPF was carefully considered. However, the evidence of record
confirms that the disposition and filing of the record of NJP he accepted
on
15 March 1995, while he was serving in the rank of SGT, was accomplished in
accordance with the applicable regulation. All requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the NJP process.
2. By regulation, the filing determination of the commander at the time
was final and lacking some evidence of error in the filing determination,
there is an insufficient evidentiary basis to support removing the document
from the OMPF at this time. In order to justify correction of a military
record the applicant must show to the satisfaction of the Board, or it must
otherwise satisfactorily appear, that the record is in error or unjust.
The applicant has failed to submit evidence that would satisfy this
requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___MBL_ ___TDH__ ___JI___ 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.
____Thomas D. Howard____
CHAIRPERSON
INDEX
|CASE ID |AR20040002747 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |2005/02/17 |
|TYPE OF DISCHARGE |N/A |
|DATE OF DISCHARGE |N/A |
|DISCHARGE AUTHORITY |N/A |
|DISCHARGE REASON |N/A |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. 267 |123.0700 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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