RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060010425


      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. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 company grade Article 15 be
removed from the restricted fiche (R-fiche) of her Official Military
Personnel File (OMPF).

2.  The applicant states, in effect, that the Article 15 was based on an
unjust investigation and the time for the document to be in her record has
been served.  She would like to apply for WOCS (Warrant Officer Candidate
School) or Drill Sergeant School.

3.  In support of her application, the applicant provides a copy of the DA
Form 2627, Record of Proceedings Under Article 15, UCMJ; a copy of an
unsigned memorandum she addressed to the President, Department of the Army
Suitability Evaluation Board, Subject:  Request Removal of Company Grade
Article 15, dated 02 May 2000, dated 20 June 2006; and a copy of three
character reference memorandums from her commander, the Officer in Charge
of the Field Operation Training Branch, and the Director of Training, Army
Center of Excellence, Subsistence.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on the date of her application to
this Board, she was serving on active duty, in the rank of staff sergeant
(SSG), at Fort Lee, Virginia.

2.  On 30 June 2000, while she was serving as a staff sergeant, the
applicant was administered punishment, under the provision of Article 15,
of the UCMJ, for unlawfully pushing and slapping another female with her
hands, on 2 May 2000, a violation of Article 128 of the UCMJ.

3.  The imposed punishment for this violation of the UCMJ was a forfeiture
of $455.00 pay, for one month, and extra duty for 14 days.  At the time
the punishment was administered, the commander who imposed the punishment
directed that the original DA Form 2627 be filed in the R-fiche of the
applicant's OMPF.

4.  The applicant appealed the punishment imposed on 30 June 2000.  On
7 July 2000, an officer of the Judge Advocate General's Corps (JAGC)
reviewed the record of proceedings and all related documents.  He opined
that the proceedings
were conducted in accordance with law and regulation and the punishments
imposed were neither unjust nor disproportionate to the offense committed.

5.  On 17 July 2000, the applicant's battalion commander, a lieutenant
colonel, denied her appeal.

6.  The applicant's duty performance and display of character are described
by her commander as nothing short of outstanding.  He states she has
excelled in various leadership positions at the Army Center of Excellence,
Subsistence, at Fort Lee, to include baking lab NCOIC (Non Commissioned
Officer in Charge), assistant burial team NCOIC, and team leader at the
Field Operations Training Branch.  The applicant's commander made no
reference or recommendation pertinent to the Article 15's removal from her
OMPF.

7.  The Field Operation Training Branch, OIC (officer in charge), describes
the applicant's duty performance as impeccable.  Of twenty-two staff
sergeants he supervises, the OIC ranks her above and beyond the rest.  He
states the applicant could serve the Army as a drill sergeant and would
definitely excel as a food service warrant officer.  He recommended the
Article 15 be removed from the applicant's R-fiche of her OMPF.

8.  The Director of Training, Army Center of Excellence, Subsistence,
describes the applicant as the quintessential food service
instructor/writer and her character and sense of responsibility as second
to none.  The applicant's director made no reference or recommendation
pertinent to the Article 15's removal from her OMPF.

9.  In her application to the Board, the applicant based her request for
removal of the Article 15 from the R-fiche of her OMPF on her belief that
the Article 15 was administered based on an unjust investigation and the
"time served for document" (believed to mean that the document has been in
her OMPF sufficiently long).

10.  In the unsigned memorandum addressed to the President, DASEB, dated
30 June 2006, she stated, "The Acting Commander at the time of the incident
was 1LT Z_____.  1LT Z_____ informed me he would ensure that a full
investigation of the incident would be conducted and that all witnesses
would be contacted and interviewed.  I later discovered that none of this
occurred; the Investigating Officer never contacted my witnesses or the
witnesses that provided statements."
11.  In the above referenced unsigned memorandum, the applicant also
states, "It has been more than 6 years since this incident occurred. . . ."

12.  Army Regulation 600-37 sets forth policies and procedures to (a)
authorize placement of unfavorable information about Army members in their
individual official personnel files; (b) to ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in their individual official personnel files; and (c) 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 their official personnel files.

13.  Paragraph 7-2, of the above referenced regulation, states that once
a document has been directed for filing 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.  The
regulation contains provision for the transfer of a DA Form 2627 from the
performance portion (P-Fiche) to the restricted portion (R-Fiche) of the
OMPF; however, there are no provisions for the removal a DA Form 2627
from the OMPF (emphasis added).

14.  Army Regulation 27-10 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 in 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 rank of sergeant
and above, the original of the DA Form 2627 will be sent to the
appropriate custodian for filing in the OMPF.  The decision to file the
original DA Form 2627 in 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.

15.  Paragraph 3-43, of the above referred to regulation, contains
guidance on the transfer or removal of records of nonjudicial punishment
(DA Form 2627) from the OMPF.  It states, in pertinent part, that
application for removal of an Article 15 from a Soldier's OMPF based on
error or injustice will be made to the Army Board for Correction of
Military Records (ABCMR).  It further states 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.

16.  AR 600-8-104 provides policy and procedure for maintenance of a
Soldier's personal information.  The R-Fiche, of a Soldier's OMPF is used
for historical data that may normally be improper for viewing by selection
boards or career managers.  The release of this information is strictly
controlled and will not be released without written approval from the CG,
PERSCOM [now the Commander, Human Resources Command]; the Commander,
ARPERCEN; the Commander, ARNG Personnel Center, or the HQDA selection board
proponent.

17.  AR 600-8-104 provides policy and procedure for maintenance of a
Soldier's OMPF.  Paragraph 2-2.b. states that the custodian for an active
Army enlisted Soldier's OMPF is the Commander, Army Human Resources Command-
Indianapolis [formerly the US Army Enlisted Records and Evaluation Center
(USAEREC)], Fort Benjamin Harrison, Indiana.

18.  Paragraph 2-4.a. states that once placed in the OMPF, the document
becomes a permanent part of that file.  The document will not be removed
from a fiche or moved to another part of the fiche unless directed by,
among other agencies, the Army Board for the Correction of Military Records
(ABCMR) or the OMPF custodian when documents have been improperly filed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to remove the DA Form 2627 in question from her
OMPF was carefully considered.  The evidence shows that the DA Form 2627
was filed as directed by the officer who administered the non-judicial
punishment after carefully, objectively thinking about his decision where
to file the Article 15 and the impact that it might have on the Soldier's
career, including the impact it may have on future assignment actions.

2.  The evidence also shows that after the DA Form 2627 was appropriately
administered and the applicant was given an opportunity to appeal the
punishment.  She appealed and her battalion commander, a lieutenant
colonel, the official empowered to consider her appeal, denied the appeal
based on a JAGC officer's review of the record of proceedings, the facts
of the case, and all other available documentary evidence, and his opinion
that the proceedings had been conducted in accordance with law and
regulation and the punishments imposed were neither unjust nor
disproportionate to the offense committed.

3.  The applicant states that the Article 15 was based on an unjust
investigation; however, she has presented no evidence to show the
injustice committed.  In the
unsigned memorandum that she addressed to the president of the DASEB, she
described, from her viewpoint, the events that transpired on 2 May 2000;
she presents an allegation of a failure by her unit commander to
investigate the incident and in the same paragraph states that the
investigating officer did not contact the witnesses or the witnesses who
provided written statements.

4.  In the unsigned memorandum that the applicant addressed to the
president of the DASEB, she outlines those accomplishments and
contributions she has made to the Army in those assignments she has been
given and expresses her concerns by stating that the Article 15 has been
in her restricted fiche for more than 6 years and it has stifled her
career advancement.

5.  The evidence shows the applicant has done well in her career since
receiving the Article 15.  It is apparent she has gained the respect and
trust of her leaders who have placed her in a variety of positions of
responsibility.  There is no evidence, and the applicant has provided
none, to show her career has been stifled.

6.  Applicable regulation states that, once a document has been directed
for filing in the OMPF, it is presumed to be administratively correct and
to have been filed pursuant to an objective decision by competent authority
and there are no provisions for the removal of a DA Form 2627 from a
Soldier's OMPF.

7.  The R-fiche, that portion of the applicant's OMPF in which the record
of proceedings under Article 15 is filed, is used for historical data that
may normally be improper for viewing by selection boards or career
managers.  The release of information from this fiche is strictly
controlled and will not be released without written approval from the
Commander, Human Resources Command, or the HQDA selection board proponent.
 Therefore, it is concluded that the DA Form 2627 is properly filed, and,
clear and compelling evidence has not been submitted that would serve as a
foundation for the total removal of the DA Form 2627 from the R-fiche of
the applicant's OMPF.  Filing of the DA Form 2627 in the R-fiche of the
applicant's OMPF was not in error or unjustly.

8.  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.
9.  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

__JCR___  _WDP __  _KSJ____  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.




                                  ___William David Powers_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060010425                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 277   |126.0000                                |
|2.  281                 |126.0400                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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