RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 December 2006
      DOCKET NUMBER:  AR20060008039


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Peter Fisher                  |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Jeffrey Redmann               |     |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 the Record of Proceedings under Article 15,
Uniform Code of Military Justice (UCMJ), dated 15 June 1993, be removed
from the performance portion of his Official Military Personnel File
(OMPF).

2.  The applicant states he has been in the Oklahoma Army National Guard
for 11 years and in the Colorado Army National Guard for one year since his
discharge from active duty.  He will retire soon and has completed a one-
year tour in Iraq.  He states that he has only one incident throughout his
service with the Army and the Oklahoma Army National Guard.  He regained
his rank to sergeant and has been promoted to staff sergeant since being in
the National Guard.

3.  The applicant provides a copy of the DA Form 2627 (Record of
Proceedings under Article 15, UCMJ), dated 15 June 1993.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in support of Operation Iraqi Freedom.

2.  The applicant enlisted in the Regular Army on 5 February 1986.  He
completed basic training and advanced individual training at Fort Sill,
Oklahoma. At the completion of the required training, he was awarded
military occupational specialty 13F (Fire Support Specialist).  He was
promoted to sergeant on 1 May 1990.  He served in Southwest Asia from
January 1991 to May 1991.

3.  He was assigned to Germany in March 1992.

4.  On 15 June 1993, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for operating a passenger car while drunk.  The applicant
did not demand trial by court-martial, requested an open hearing in the
Article 15 proceedings, requested a person to speak in his behalf, and
submitted matters in his own behalf.

5.  After consideration of all matters presented in the open hearing, the
imposing commander decided that, beyond a reasonable doubt, the applicant
had committed the offense.  He imposed the punishment of a reduction to pay
grade E-4 and extra duty for 45 days.

6.  The imposing commander directed that the original Record of Proceedings
under Article 15 be filed in the performance portion of the applicant's
OMPF.  The applicant elected to appeal the punishment.  The appeal was
denied on 6 July 1993.

7.  The applicant was honorably discharged from active duty on 24 February
1994 under the provisions of Army Regulation 635-200, paragraph 16-8 based
on the early release program - Special Separation Benefit.  He completed
8 years and 20 days active military service.  He enlisted in the U.S. Army
Reserve on 24 (sic) February 1994 in pay grade E-4.

8.  The applicant enlisted in the Army National Guard on an unknown date.
He is currently serving in the Army National Guard in the rank of staff
sergeant.

9.  There is no other record of disciplinary actions.

10.  Army Regulation 27-10 (Military Justice), in pertinent part, provides
the applicable policies for administration of nonjudicial punishment.  The
regulation states that nonjudicial punishment may be imposed to correct,
educate, and reform offenders whom the imposing commander determines cannot
benefit from less stringent measures; to preserve a Soldier’s record of
service from unnecessary stigma by record of court-martial conviction; or
to further military efficiency by disposing of minor offenses in a manner
requiring less time and personnel than trial by court-martial.  All Article
15 actions, including notification, acknowledgment, imposition, filing
determinations, appeal, action on appeal,
or any other action taken prior to action being taken on an appeal, except
summarized proceedings, are recorded on DA Form 2627.  The regulation also
states that absent compelling evidence, a properly completed, valid DA Form
2627 will not be removed from a Soldier’s record.

11.  Army Regulation 27-10 states, in pertinent part, that enlisted
Soldiers (E-5 and above) and officers may petition the Department of the
Army Suitability Evaluation Board (DASEB) for transfer of records of
nonjudicial punishment from the performance to the restricted portion of
the OMPF.  To support the request, the person must submit substantive
evidence that the intended purpose of the Article 15 has been served and
that the transfer is in the best interest of the Army.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel
Records Jacket, the Career Management Individual File, and Army Personnel
Qualification Records.  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 ABCMR, the Department of the Army Suitability
Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections
Branch of the Human Resources Command, the OMPF custodian when documents
have been improperly filed, Human Resources Command as an exception, Chief
of the Appeals Branch of the Army Reserve Personnel Center, and Chief of
the Appeals Branch of the National Guard Personnel Center.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received nonjudicial punishment imposed under Article 15,
UCMJ, on 15 June 1993 for operating a passenger car while drunk.  He was
reduced to pay grade E-4 and extra duty for 45 days.  The imposing
commander determined that it would be appropriate to place the Article 15
in the performance portion of the applicant's OMPF.

2.  There was no other record of misconduct committed by the applicant or
any record of nonjudicial punishment given to the applicant since the
Article 15 was imposed on 15 June 1993.

3.  The applicant was discharged from active duty on 24 February 1994 and
is currently serving in the Army National Guard in the rank of staff
sergeant.

4.  After careful review of this case, it has been determined that the
applicant’s commendable performance for over 13 years after the offense
demonstrates that the Article 15 has served the purpose for which it was
intended.  Therefore, it would be equitable to transfer the Article 15,
dated 15 June 1993, from the performance portion to the restricted portion
of the applicant’s OMPF.

5.  The filing of the Article 15, UCMJ in the performance portion of his
OMPF was not an error.  Therefore, there appears to be no basis for
removing the Article 15.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

PF______  TR______  JR______  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board recommends that all Department of the Army records of the
individual concerned be corrected by transferring the Article 15, dated 15
June 1993, to the restricted portion of his OMPF.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
removing the Article 15, UCMJ, dated 15 June 1993, from the performance
portion of his OMPF.




                            Peter Fisher__________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008039                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061221                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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