RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20060007920


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John g. Heck                  |     |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 documents that are filed in the
restricted section of his Official Military Personnel File (OMPF) be
removed so that he may reach his full potential and further benefit the
Army.

2.  The applicant states, in effect, that the Article 15 that is filed in
his OMPF should be removed because he was conducting nuclear, biological,
and chemical (NBC) training that was the same as that which all other
platoons were doing; it was absolutely necessary and for the betterment of
the Soldier; and that he was not abusing his authority or over-stepping his
bounds by training the Soldier to survive in Mission Oriented Protective
Posture (MOPP) gear.  He also states, in effect, that a special court-
martial found him innocent of all charges and allegations and the
accusations were dropped; however, documents relating to the court-martial
are still in his OMPF and should be removed.  The applicant adds, in
effect, that he has served as a staff sergeant for six years, a platoon
sergeant for three years, and that these offenses are preventing him from
being promoted.

3.  The applicant provides a self-authored statement, dated 26 April 2006;
a
DA Form 2823 (Sworn Statement), undated; and DA Form 4430 (Department of
the Army Report of Result of Trial) conducted on 18 & 19 July 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the
Regular Army (RA) on 30 January 1996.  Upon completion of basic combat
training and advanced individual training, the applicant was awarded
military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).
On 1 December 1999, he was promoted to the grade of rank of staff sergeant.

2.  The applicant's military service records contain a copy of a DA Form
2627, dated 14 August 2002.  This document shows, in pertinent part, that
on 5 August 2002, the lieutenant colonel in command of Task Force 1st
Battalion,18th Infantry (TF 1-18 IN), notified the applicant of his intent
to impose non-judicial punishment upon him for, on or about 2 July 2002,
maltreating a Soldier that was subject to the applicant's orders, by
directing him to perform a variety of exercises in a protective suit, by
making him do "frog jumps" with his legs tied together with engineer tape,
and by making him stand at parade rest for approximately one hour after he
had performed the exercises.  On 14 August 2002, the applicant affixed his
signature in Item 3 of the document indicating he did not demand trial by
court-martial; that he requested a closed hearing; a person to speak in his
behalf; and that matters in defense, mitigation, and/or extenuation would
be presented and were attached.  Following a hearing where all matters
presented in defense, mitigation, and/or extenuation were considered, the
commander affixed his signature in Item 4 of the document directing the
applicant's reduction to E5, suspended, to be automatically remitted if not
vacated before 10 February 2003; forfeiture of $956.00, suspended, to be
automatically remitted if not vacated before 10 February 2003; extra duty
for 45 days; and restriction for 45 days, suspended, to be automatically
remitted if not vacated before 10 February 2003.  Item 5 of this document
also shows that the commander directed that the DA Form 2627 be filed in
the restricted section of the applicant's OMPF.  The applicant signed the
document again, in Item 7, and indicated he did not appeal the Article 15.
This document is filed in the restricted section of the OMPF.

3.  The applicant's military service records contain a copy of
Headquarters, U.S. Army Enlisted Records and Evaluation Center,
Indianapolis, Indiana, memorandum, dated 30 September 2004, subject:
Certification of OMPF pertaining to SSG [Applicant's Name and Social
Security Number].  This document shows, in pertinent part, that a copy of
the applicant's OMPF
(i.e., performance and service sections) and a DA Form 2627 (Record of
Proceedings Under Article 15, UCMJ), dated 14 August 2002, were provided to
the Staff Judge Advocate, Headquarters, Schweinfurt Law Center (Germany),
in response to a request for the applicant's OMPF based upon his pending
trial by court-martial.  This document, along with the document requesting
the applicant's OMPF, is filed in the restricted section of the applicant's
OMPF.

4.  The applicant's OMPF is absent a copy of a court-martial order
regarding a special court-martial on 18 and 19 July 2005.

5.  There is no evidence that the applicant petitioned the Department of
the Army Suitability Evaluation Board (DASEB) for removal of the DA Form
2627 or the documents relating to his court-martial that are filed in the
restricted section of his OMPF.

6.  In support of his request, the applicant provides a self-authored
statement, a sworn statement from another Soldier, and a copy of a DA Form
4430.  In his self-authored statement, the applicant asserts that the
Article 15 should be removed from his OMPF because he was in no way abusing
his authority by training the Soldier to survive in MOPP gear.  He also
asserts that the court-martial found him innocent of all charges and
allegations and that the accusations were dropped; however, documentation
in his OMPF indicates the court-martial is still pending and preventing him
from being promoted.  He concludes by adding the documents should be
removed from his OMPF.  The sworn statement is from a Soldier who states
that he was in Kosovo in 2002 when the applicant received an Article 15.
In his statement the Soldier states, in effect, that all Soldiers in the
applicant's squad, along with those in the other platoons, were ordered to
perform the NBC training in MOPP gear and it was conducted without
discrimination.  This Soldier also adds, in effect, that he believes the
applicant received an Article 15 because the Soldier who complained that
the training was unfair, harsh, and discriminating towards him had an uncle
who was a Governor and used this to his advantage.  This document is signed
by the Soldier swearing to the statement, a Soldier
(i.e., specialist) who witnessed the document, and a commissioned officer
who administered the oath; however, the document is undated.  The DA Form
4430 shows, in pertinent part, that in trial by special court-martial on 18
and 19 July 2005, the applicant pled not guilty and was found not guilty of
all charges and specifications.

7.  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, ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files, and 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.

8.  Chapter 7 of Army Regulation 600-37 provides the policies and
procedures for appeals and petitions for removal of unfavorable information
from the OMPF.  It states that appeals and petitions for removal of
unfavorable information are to be directed to the DASEB.  Paragraph 7-2 of
this regulation 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.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.
This document states that only those documents listed in Table 2-1 and
Table
2-2 are authorized for filing in the OMPF.  Depending on the purpose,
documents will be filed in the OMPF in one of three sections:  performance,
service, or restricted.

10.  Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 shows
that the DA Form 2627 is filed in either the performance or restricted
section of the OMPF, as directed by Item 5 of the DA Form 2627.

11.  Table 2-1 of Army Regulation 600-8-104 shows that approved requests
for the release of documents in the restricted section of the OMPF will be
filed in the restricted section of the OMPF.  This document also provides
with respect to court-martial orders, in pertinent part, if all approved
findings are not guilty, the order is filed in the restricted section of
the OMPF.

12.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104
provides, in pertinent part, that the restricted section of the OMPF is
used for historical data that may normally be improper for viewing by
selection boards or career managers.  The release of information on this
section is controlled.  It will not be released without written approval
from the Commander, U.S. Army Human Resources Command (i.e., for enlisted
Soldiers, formerly designated as Headquarters, U.S. Army Enlisted Records
and Evaluation Center) or the Headquarters, Department of the Army (HQDA)
selection board proponent.  This paragraph also provides that documents in
the restricted section of the OMPF are those that must be permanently kept
to maintain an unbroken, historical record of a Soldier's service, conduct,
duty performance, and evaluation periods; show corrections to other parts
of the OMPF; record investigation reports and appellate actions; and
protect the interest of the Soldier and the Army.

13.  Paragraph 2-6 (Release of restricted data filed in the OMPF) of this
regulation provides strict guidelines on the release of information filed
in the restricted section of the OMPF and limits it to those government
agencies specifically identified in the paragraph.  This paragraph
provides, in pertinent part, that restricted data will not be given to any
other person or agency, without the approval of the Commanding General,
U.S. Army Human Resources Command or HQDA selection board proponent.  This
regulatory provision also states that, "[t]he following disciplinary
information will not be provided to these boards:  any court-martial order
where all findings were not guilty; or all charges or specifications were
dismissed; or all findings of guilty were reversed in a supplemental order;
or the order was transferred to the restricted fiche (section) by the ABCMR
to correct an error or to remove an injustice."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the DA Form 2627 filed in the
restricted section of his OMPF should be removed because he was conducting
NBC training of the Soldier in MOPP gear that was the same as that which
all other platoons were conducting; it was absolutely necessary and for the
betterment of the Soldier; and that he was not abusing his authority or
over-stepping his bounds by training the Soldier to survive in MOPP gear.
He also maintains that the documents relating to his court-martial should
be removed because a special court-martial found him innocent of all
charges and allegations, and the accusations were dropped.

2.  The evidence of record shows that the applicant received a Field Grade
Article 15 for charges originating from an incident concerning maltreatment
of a Soldier during training.  The evidence of record confirms that the
applicant was notified of the TF 1-18 IN commander’s intent to handle the
offense in question under the provisions of Article 15.  After being
afforded the opportunity to consult with legal counsel, the applicant
elected not to demand a trial by court-martial and chose to have his case
disposed of through Article 15 proceedings at a closed hearing with the TF
1-18 IN commander.  The record further shows that subsequent to the
hearing, at which the applicant presented matters of defense, mitigation,
and/or extenuation, non-judicial punishment was imposed for the applicant’s
violation of Article 93 of the UCMJ.  The applicant did not appeal the non-
judicial action, the TF 1-18 IN commander directed the punishment be
effected, and the DA Form 2627 be filed in the restricted fiche (i.e.,
section) of the applicant's OMPF.  Notwithstanding the sworn statement of
the Soldier who was in Kosovo when the applicant received the Article 15,
the applicant provides insufficient evidence to show that the DA Form 2627
is untrue or unjust.  Therefore, the DA Form 2627 is deemed true and
accurate and is properly filed in the applicant's OMPF.

3.  The evidence of record shows that the approved request for the release
of documents in the restricted fiche (i.e., section) of an OMPF is to be
filed in the restricted section of the OMPF.  Therefore, the memoranda
relating to the release of documents based upon the applicant's court-
martial are properly filed in the restricted section of his OMPF.

4.  The evidence of record shows a court-martial order in which all
approved findings were not guilty will be filed in the restricted section
of the OMPF.  However, despite this Army regulatory guidance, the evidence
of record shows that the applicant's OMPF is absent a copy of the court-
martial order for the trial by special court-martial held on 18 and 19 July
2005, in which all approved findings were not guilty.

5.  The evidence of record shows that, with the exception of the command
sergeant major/sergeant major selection and retention boards, HQDA enlisted
selection boards are not routinely provided documents that are filed in the
restricted section of the OMPF.  Moreover, Army regulatory guidance
establishes strict requirements to prevent the unauthorized release of
information from the restricted section of the OMPF.  In this regard, the
applicant provides insufficient evidence to support his contention that the
documents currently filed in the restricted section of his OMPF will
prevent him from being promoted and not allow him to reach his full
potential in the U.S. Army.

6.  By regulation, in order to remove a document from the OMPF, there must
be clear and convincing evidence showing that the document is untrue or
unjust.  The applicant provided no such evidence to this Board that the
documents are untrue or unjust in this case.  Therefore, the DA Form 2627,
the memorandum that requested a copy of the applicant's OMPF, and the
memorandum which documents the release of the applicant's OMPF (in support
of the administrative process necessary to prepare for the applicant's
court-martial) are properly filed and should not be removed from the
applicant's OMPF.

7.  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

___SLP__  __RML__  __JGH __  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.





                                  ____Shirley L. Powell_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060007920                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.0600.0000                           |
|2.                      |134.0200.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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