RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2006
      DOCKET NUMBER:  AR20060012398


      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. Melinda M. Darby              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 Record of Proceedings Under
Article 15, Uniform Code of Military Justice (UCMJ), DA Form 2627, be
removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he received the Article 15 in
1999 when he was stationed at Fort Drum, New York.  He also states that he
believes that one error in judgment that he made when he was a sergeant (E-
5) is preventing him from being selected for special assignments and
promoted to the rank of sergeant first class (E-7).  He further states, in
effect, that his impeccable service record over the course of 16 years,
with only one infraction, justifies removal of the Article 15 from his
military service records.  The applicant adds that his request should be
considered because he only recently discovered that the Article 15 is the
reason for his inability to get promoted to the grade of E-7.

3.  The applicant provides a copy of his Enlisted Record Brief (ERB), dated
17 August 2006; DA Form 2627, dated 14 October 1999; Headquarters and
Headquarters Battery, 4th Battalion, 27th Field Artillery, memorandum,
dated
23 August 2006, subject:  Letter of Recommendation for SSG [Applicant's
Name]; and DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation
Report), covering the period from September 2005 through August 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the
U.S. Army on 11 July 1989.  Upon completion of basic combat training and
advanced individual training, the applicant was awarded military
occupational specialty (MOS) 13F (Fire Support Specialist).  He served in
Southwest Asia from
25 December 1990 to 1 May 1991 and in Bosnia from 20 January 1996 to
6 November 1996.  The applicant attained the grade of rank of sergeant/pay
grade E-5 and was honorably discharged on 15 September 1997 after
completing a total of 8 years, 2 months, and 5 days net active service.

2.  On 1 December 1998, the applicant reentered the U.S. Army in the grade
of rank of sergeant (E-5) in MOS 13F.  The applicant was promoted to the
grade of rank of staff sergeant/pay grade E-6 on 1 December 1999 and he
served in support of Operation Iraqi Freedom from 1 May 2003 to 29 July
2004.

3.  The applicant's military service records contain a DA Form 2627 that is
filed in the restricted section of the applicant's OMPF.  This document
shows that on
17 September 1999, the captain in command of D Battery, 2nd Battalion,
15th Field Artillery, Fort Drum, New York, notified the applicant of his
intent to impose non-judicial punishment upon him for wrongfully making
available to another Soldier an alcoholic beverage or beverages while the
Soldier was under the legal drinking age.  On 14 October 1999, the
applicant indicated with his initials that he did not demand trial by court-
martial and, in the Article 15 proceedings, he requested the hearing be
closed and that matters in defense, mitigation, and/or extenuation were
attached to the document.  The applicant signed Item 3 of the document.

4.  On 14 October 1999, the commander directed forfeiture of $392.00 pay
per month for one month and extra duty for 14 days, both suspended, to be
automatically remitted, if not vacated by 13 December 1999.  The commander
also directed in Item 5 of the DA Form 2627 that the document be filed in
the restricted section of the applicant's OMPF and the commander signed the
DA Form 2627.  On 14 October 1999, the applicant indicated with his
initials that he did not appeal the Record of Proceedings Under Article 15
and signed the document in Item 7.

5.  The applicant's military service records contain a copy of a DA Form
2166-7 (NCO Evaluation Report), covering the period from April 1999 through
March 2000, which is filed in the performance section of the applicant's
OMPF.  This document shows that he was rated as "Among The Best."  In
addition, the senior rater indicated his overall performance was
"Successful" and overall potential for promotion and/or service in
positions of greater responsibility was "Superior."   A further review of
this document reveals it is absent any adverse ratings or comments related
to the incident for which non-judicial punishment was imposed against the
applicant on 14 October 1999.

6.  The applicant provides a memorandum from the captain serving as
Battalion Fire Support Officer, Headquarters and Headquarters Battery, 4th
Battalion,
27th Field Artillery.  In this document the captain states that he has
served with the applicant for over 2 years and attests to the
professionalism of the applicant, his tactical and technical proficiency,
and proven leadership of Soldiers in combat.  The captain also states, in
effect, that he does not believe the applicant should have received a field
grade Article 15 from a captain serving as the rear detachment commander.
He further asserts, in effect, that the applicant is an invaluable asset to
the Army, has proven his potential for promotion, and the Article 15 should
be expunged from his records so that he is not prevented from promotion and
career progression duty assignments.  The applicant also provides a copy of
his most recent NCO Evaluation Report, for the period September 2005
through August 2006, which shows that he was rated as "Among The Best."
This document also shows that the applicant's senior rater indicated his
overall performance was "Successful" and overall potential for promotion
and/or service in positions of greater responsibility was "Superior."

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.  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.

9.  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 in Item 5 of the DA Form 2627.

10.  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 in this
section is controlled.  It may not be released without written approval
from the Commander, U.S. Army Human Resources Command (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 interests of the Soldier and the Army.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records)
provides policy and procedures for applying to the Army Board for
Correction of Military Records (ABCMR) and for the correction of military
records by the Secretary of the Army.  This Army regulation provides, in
pertinent part, that requests should be sent to the ABCMR to correct an
error or remove an injustice only after other available means of
administrative appeal have been exhausted.

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 it is preventing
him from being selected for special assignments and promoted to the rank of
sergeant first class (E-7).  He also contends, in effect, that his
impeccable service record over the course of 16 years, with only one
infraction, justifies removal of the Article 15 from his military service
records.

2.  The evidence of record shows that there is no documentary evidence
filed in the performance section of the applicant's OMPF that refers to the
incident for which the DA Form 2627 was imposed against the applicant on 14
October 1999.

3.  The evidence of record also shows that career managers and 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 DA Form 2627 that is filed in the restricted section of
his OMPF is preventing him from being selected for special assignments and
promoted to the grade of rank of sergeant first class (E-7).

4.  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
is properly filed and should not be removed from the restricted section of
the applicant's OMPF.

5.  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

__MMD__  __JCR___  __RDG _  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.




                                          Melinda M. Darby____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012398                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061019                                |
|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.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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