RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 8 November 2005
DOCKET NUMBER: AR200500014443
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. Lisa O. Guion | |Analyst |
The following members, a quorum, were present:
| |Mr. Stanley Kelley | |Chairperson |
| |Ms. Diane J. Armstrong | |Member |
| |Ms. Delia R. Trimble | |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 the Article 15 is over ten years
old and that it is hindering his career advancement.
3. The applicant provides a self-authored statement in support of his
request.
CONSIDERATION OF EVIDENCE:
1. The applicant’s military records show that he is currently serving on
active duty in Ft. Lee, Virginia and he holds the rank of staff sergeant
(SSG).
2. On 25 August 1994, while serving as a sergeant (SGT) at Fort Sam
Houston, Texas, the applicant accepted nonjudicial punishment (NJP) for
wrongfully attempting to have sexual intercourse with a female private
first class (PFC) who was not his wife, and for willfully and corruptly
subscribing false statements under the penalty of perjury. His punishment
for these offenses included a suspended reduction to specialist (SPC) and
30 days extra duty. 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 appealed the NJP
action and submitted additional matters.
4. On 9 September 1994, a Judge Advocate General (JAG) officer considered
the applicant’s appeal and opined that the proceedings were conducted in
accordance with law and regulation and the punishments imposed were neither
unjust nor disproportionate to the offenses committed.
5. On 9 September 1994, the appellate authority, Commander, United States
Army Garrison, Fort Sam Houston, denied the applicant’s appeal.
6. 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.
7. 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's 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
25 August 1994, 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. Absent evidence of error in the filing determination, there is
an insufficient evidentiary basis to support removing the document from the
OMPF. 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
___SK __ __DJA___ __DRT _ 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.
____Stanley Kelley______
CHAIRPERSON
INDEX
|CASE ID |AR20050014443 |
|SUFFIX | |
|RECON |NA |
|DATE BOARDED |2005/11/08 |
|TYPE OF DISCHARGE |NA |
|DATE OF DISCHARGE |NA |
|DISCHARGE AUTHORITY |NA |
|DISCHARGE REASON |NA |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Chun |
|ISSUES 1. |123.0700 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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