RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 FEBRUARY 2007
	DOCKET NUMBER:  AR20060012886 


	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.  


	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 removal of a DA Form 2627 (Record of Proceedings Under Article 15) from her Official Military Personnel File (OMPF).

2.  The applicant states that the Article 15 was overturned during the appeal process and therefore, should not have been filed in her OMPF.

3.  The applicant provides a copy of the Article 15, supporting letter, DA Form 4856 (Developmental Counseling Form), and Military Police Report. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she served in the United States Marine Corps for 4 years prior to enlisting in the Regular Army on 15 February 2000 in the grade of E-4.  The applicant has served continuously since her enlistment and was promoted to sergeant on 1 June 2002.  She is currently serving as a staff sergeant with a date of rank of 1 February 2006. 

2.  On 19 January 2006, nonjudicial punishment was imposed against the applicant by her company commander for assaulting a fellow noncommissioned officer by pushing her.  Her punishment included extra duty for 7 days and a written reprimand. 

3.  Records show the applicant was afforded the opportunity to consult with counsel but initialed "I do not demand trial by court-martial."  She also initialed the block indicating that matters in her defense would be presented in person. The commander signed the Article 15 verifying that "I have considered all matters presented in defense and/or extenuation and mitigation."  He directed the Article 15 to be filed in the performance section of the applicant’s Official Military Personnel File.  She signed the Article 15 and checked the block indicating that she wished to appeal and would submit additional matters on her behalf.  

4.  On 30 January 2006, the battalion commander of the 510th Personnel Services Battalion considered all matters presented in the applicant’s appeal and set aside her punishments of extra duty for 7 days and the written reprimand.  

5.  Memorandum dated 16 May 2006, issued by the 510th Personnel Services Battalion Commander clarifies his intent for the disposition of the Article 15 imposed against the applicant.  The battalion commander states that he granted the applicant’s appeal to the Article 15 imposed by her company commander and 
issued her a letter of reprimand in lieu thereof.  He maintains that his intent was to wholly set aside the Article 15 and remove any record of it from the applicant’s local or official file.  The battalion commander explains that he was not advised that he had to annotate in block 9 of the DA Form 2627 that the Article 15 should be set aside in its entirety and not filed in her OMPF.  He recommends removal of the Article 15 from the applicant's OMPF.

6.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period October 2005 through March 2006 makes no reference to the assault that occurred during the rating period.  This report shows that the applicant received "Excellence" ratings by her rater in competence, physical fitness, responsibility and accountability.  She received "Success" ratings in leadership and training.  The senior rater assessed her overall potential for promotion and/or service
 in positions of greater responsibility as "Among the Best" and rated her 
"2-Successful" and "1-Superior" in overall performance and overall potential 
for promotion, respectively.

7.  The DA Form 4856, dated 7 January 2006, verifies that the applicant was counseled concerning the commander’s intent to recommend her for a Company Grade Article 15 for simple assault.  Additionally, the Military Police Report dated 31 December 2005 verified that the offense of simple assault alleged against the applicant was determined to be "founded."  

8.  There is no record of a letter of reprimand in the applicant’s OMPF.

9.  Army Regulation 27-10 (Military Justice) establishes the policies and procedures for administration of military justice.  Paragraph 3-2 states that the use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  Nonjudicial punishment may be imposed to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction.  The imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15, UCMJ.  The Soldier will be advised that he/she has a right to demand trial.  The demand for trial may be made at any time prior to imposition of punishment.  The Soldier will be informed of his/her right to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, be accompanied by a spokesperson, request an open hearing, and/or examine available evidence.  Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).


10.  Additionally, the regulation states that the imposing commander, a successor-in-command, or the next superior authority may, remit or mitigate any part or amount of the unexecuted portion of the punishment imposed, suspend probationally any part or amount of the unexecuted portion of the punishment imposed, or suspend probationally a reduction in grade or forfeiture, whether or not executed. 

11.  Army Regulation 27-10 also explains that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

12.  Army Regulation 600-37, Unfavorable Information, establish policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual official personnel files.  The 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. 

DISCUSSION AND CONCLUSIONS:

1.  At the time the Article 15 was rendered, the applicant had served over 9 years in the military with over 3 years in time in grade as a sergeant.  In this regard, it appears that the imposing commander considered this information and the seriousness of the offense prior to electing to render the DA Form 2627 and choose to file the Article 15 in the performance section of the applicant’s OMPF. 

2.  The applicant appealed the Article 15 and on 30 January 2006 the battalion commander elected to set aside the 7 days extra duty and the written letter of reprimand.  Several months later, in his letter of support, he now states that his intent was to wholly set aside the Article 15 and to remove any record of the Article 15 from the applicant’s OMPF.  

3.  The regulation as cited above provides guidelines on what actions can be taken by the “appeal authority.”  In each instance, the appeal authority can reduce the severity of the punishment, suspend, vacate, or set a side the punishment.  While the battalion commanders intent may have been to “remove” the Article 15 entirely from the applicant’s OMPF, unless there is clear evidence of an error or injustice, there is no provision in the regulation that would support this decision.  

4.  Notwithstanding the battalion commander’s letter of support, the evidence of record shows that the Article 15 proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offenses committed.  

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MT __  ___JH___  ___DL __  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.




______Marla Troup_________
          CHAIRPERSON




INDEX

CASE ID
AR20060012886
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070221
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
112.00
2.

3.

4.

5.

6.