RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            6 December 2005
      DOCKET NUMBER:   AR20050016151


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, removal of a Record of Proceedings
Under Article 15, UCMJ (DA Form 2627) from his Official Military Personnel
File (OMPF).

2.  The applicant states, in effect, that the Article 15 has served its
purpose and has no value or grounds to remain in his record, and he
requests it be removed from his OMPF at this time.

3.  The applicant provides a copy of the DA Form 2627 in question in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that as of the date of his application to
this Board, he was still serving on active duty, in the rank of staff
sergeant (SSG).

2.  On 6 August 2003, while he was serving as a SSG in Iraq, the applicant
was notified that his unit commander was considering whether he should be
punished under Article 15 of the UCMJ for leaving his appointed place of
duty, roving guard, without authority.  Subsequent to this notification,
the applicant elected not to demand a trial by court-martial, and instead
chose for the matter to be handled by his unit commander at a closed
hearing.

3.  On 10 August 2003, the applicant’s unit commander, after having
considered all matters presented in defense, mitigation and/or extenuation
at a closed hearing, imposed the following punishment on the applicant:
forfeiture of $514.00 and 14 days extra duty. The unit commander directed
the DA Form 2627 be filed in the restricted portion (R-Fiche) of the
applicant’s OMPF.  The applicant elected not to appeal the punishment.

4.  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; to ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files; and to ensure that the
best interests of both the Army and the Soldiers are served by authorizing
unfavorable information to be placed in and, when appropriate, removed from
official personnel files.

5.  Paragraph 7-2 of the unfavorable information regulation contains
guidance on appeals for removal of OMPF entries.  It states, in pertinent
part, the burden of proof to support removal of a document filed in the
OMPF 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.  The
regulation provides provisions that allow the transfer of a DA Form 2627
from the performance portion (P-Fiche) to the R-Fiche of the OMPF.
However, there are no provisions for removing a
DA Form 2627 from the OMPF.

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 nonjudicial
punishment on the P-Fiche of a Soldier's OMPF rests with the imposing
commander at the time punishment is imposed.  Paragraph 3-37b(2) states, in
pertinent part, that for 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 P-Fiche or
R-Fiche of the OMPF will be made by the imposing commander at the time
punishment is imposed.  The filing decision of the imposing commander is
final subject to review by superior authority.

7.  Paragraph 3-43 of the military justice regulation contains guidance on
the transfer or removal of records of nonjudicial punishment (DA Form 2627)
from the OMPF.  It states, in pertinent part, applications for removal of
an Article 15 from the OMPF based on an error or injustice will be made to
the Army Board for Correction of Military Records (ABCMR).  It further
indicates that there must be clear and compelling evidence to support the
removal of a properly completed, facially valid DA Form 2627 from a
Soldier’s record by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to remove the DA Form 2627 in question from his
OMPF was carefully considered.  However, the evidence of record confirms
the disposition and filing of the record of NJP he accepted on 10 August
2003, while he was serving in the rank of SSG, was accomplished in
accordance with the applicable regulation.  All requirements of law and
regulation were met and his rights were fully protected throughout the NJP
process.

2.  By regulation, there must be clear and compelling evidence to support
the removal of a properly completed, facially valid DA Form 2627 from a
Soldier’s record by the ABCMR.  Absent any evidence meeting this regulatory
standard, there is an insufficient evidentiary basis to support removing
the document in question from the applicant’s OMPF.

3.  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

___BPI __  __DWS _  __EEM__  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.




            ____Bernard P. Ingold____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050016151                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/06                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  267  |123.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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