RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2005
      DOCKET NUMBER:  AR20050000161


      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:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy       |     |Member               |
|     |Mr. Patrick H. McGann Jr.         |     |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 that his record of punishment under Article 15,
Uniform Code of Military Justice (UCMJ), dated, 5 November 1999, be removed
from the restricted fiche of his official military personnel file (OMPF).

2.  The applicant states that this Article 15 has kept him from being
selected to sergeant first class (SFC/E-7) by the last three selection
boards.  He believes that he has paid enough for the one mistake he made
while serving on active duty (AD).  He has always been a good Soldier and
believes that this incident should not follow him any longer.

3.  The applicant provides a copy of his Article 15 in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he is currently serving on active
duty in the rank of staff sergeant (SSG/E-6) at Fort Eustis, Virginia.

2.  On 5 November 1999, he was punished under Article 15, UCMJ, for failure
to go to his appointed place of duty on 19 October 1999 and for making a
false statement on 18 October 1999.  His punishment consisted of a
forfeiture of pay and an oral reprimand.

3.  The applicant’s commander directed that the Article 15 be filed on the
restricted fiche of the applicant’s OMPF.

4.  The applicant's overall record showed no other disciplinary violations
or revealed no additional derogatory information.

5.  The applicant provided no compelling argument why the Article 15 should
be removed from the restricted fiche of his OMPF other than his belief that
it is precluding him from getting promoted to SFC.

6.  The applicant did not apply to the Department of the Army Suitability
Evaluation Board (DASEB) for removal of his punishment under Article 15,
UCMJ.  The DASEB does not have the authority to remove the Article 15 from
the applicant's restricted fiche.  It only has the authority to direct the
results of non-judicial punishment to be transferred to the restricted
fiche.
7.  Army Regulation 27-10 prescribed the guidelines for the filing of non-
judicial punishment (NJP).  Paragraph 3-37(b) states, 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.  It also states
that the restricted section is that portion of the OMPF that contains
information not normally viewed by career managers or selection boards
except as specified in the Secretary of the Army's (SA's) written
instructions to the selection board.

8.  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 Record.  It also
prescribes the composition of the OMPF.  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, in pertinent part, that forms recording
punishment imposed after 1 November 1982, are filed on the performance or
restricted fiche of the OMPF as directed by item 5, DA Form 2627.

9.  Army Regulation 600-37 prescribes policies and procedures regarding
unfavorable information considered for inclusion in official personnel
files.
Chapter 7 covers appeals and petitions.  Paragraph 7-2 pertains to policy
standards.  Subparagraph 7-2a 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.

DISCUSSION AND CONCLUSIONS:

1.  The record of punishment the applicant received under Article 15 on
5 November 1999, was properly filed on the restricted fiche of his OMPF, in
accordance with applicable regulations.

2.  The applicant did not apply to the DASEB for removal of his Article 15.
 The DASEB does not have the authority to remove an Article 15 from an
applicant's restricted fiche.  The DASEB can only direct that the results
of non-judicial punishment be filed in the restricted fiche from another
portion of the OMPF.

3.  Careful consideration has been given to the applicant’s service before,
during and after the imposition of the NJP.  However, the applicant has
failed to convince the Board that removal of the record of punishment is in
the best interest of the Army.

4.  The applicant alleges that this Article 15 has prevented him from being
selected to SFC by the last three selection boards and that he has paid
enough for one mistake; however, there is no evidence in the available
records, and the applicant has failed to provided compelling evidence, to
show that the one mistake, receipt of Article 15, UCMJ has prevented him
from being selected to SFC.

5.  In accordance with applicable regulation, the applicant's restricted
fiche is not normally reviewed by career managers or selection boards
unless specified by written instruction from the Secretary of the Army.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jch___  ___teo__  ___phm__  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.




                                  __________James C. Hise________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000161                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . .ACTIVE DUTY                       |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |123                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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