RECORD OF PROCEEDINGS


	IN THE CASE OF:	WETZEL, ERIC H.


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060013071 


	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, in effect, that a 2002 record of proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ) be removed from his military personnel file and his rank to E-6 be restored.

2.  The applicant states that he was charged with absent without leave (AWOL) from 2 September 2002 to 23 September 2002.  However, he maintains he was not AWOL and that his report date to Korea was changed to 26 September 2002. 

3.  The applicant provides a copy of his DA Form 2627 (Record of Proceedings Under Article 15 UCMJ) and orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 8 May 1997. He was credited with 9 years, 5 months, and 24 days of active federal service at the time he was placed on the Temporary Disability Retired List (TDRL) on
2 November 2006.

2.  The applicant’ s DD Form 214 (Certificate of Release or Discharge from Active Duty) lists his pay grade as E-5 and his date of rank as 16 December 2002.  Additionally, this form shows that the applicant served two tours in Iraq from 2 April 2003 to 4 May 2004 and from 1 October 2005 to 16 February 2006.  

3.  Orders 361-86, dated 27 December 2001 reassigned the applicant from Fort Polk, Louisiana, to Camp Coiner, Korea.  His report date was listed as 20 July 2002.  These orders were later amended by Orders 200-78 and 266-094, dated 19 July 2002 and 23 September 2002, respectively.  These orders show that the applicant’s report date to Korea was changed on two separate occasions from the original report date of 20 July 2002 to 1 September 2002 and later to
26 September 2002.  Additionally, Orders 280-095, dated 7 October 2002, revoked the orders reassigning the applicant to Korea.

4.  On 16 December 2002, the applicant was punished under Article 15, UCMJ.  The Article 15 states that he did on or about 2 September 2002, without authority, absent himself from his unit of assignment, Adjutant General Detachment, Camp Coiner, Korea, and did remain so absent until on or about 
23 September 2002.  His punishment included reduction to sergeant (E5), forfeiture of $941.00 pay per month for two months, one month suspended, to 
be automatically remitted if not vacated by 14 June 2003, and extra duty for 
30 days.
5.  Records show the applicant was afforded the opportunity to consult with counsel but initialed "I do not demand trial by court-martial."  He also initialed the block indicating that matters in his 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 be filed in the restricted section of the applicant’s Official Military Personnel File.  The applicant signed the Article 15 confirming that he did not wish to appeal.  

6.  The applicant’s Enlisted Record Brief shows he was reduced from staff sergeant to sergeant.  Additionally, this form shows that he served in Korea from October 1997 to August 1998.  His records do not indicate a subsequent assignment in Korea.

7.  Orders 255-0646, dated 12 September 2006, show that the applicant was released from assignment and duty because of physical disability and placed on the TDRL.  The effective date of retirement was listed as 1 November 2006 and the date placed on the TDRL was listed as 2 November 2006.  The orders show that the applicant received a 30 percent disability rating.

8.  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 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 right to fully present his 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).

9.  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.  The applicant provided several copies of orders changing his original report date to Korea in an effort to show that his report date was after the date he was listed as being AWOL.  However, these orders do not provide any evidence to show that the applicant was not AWOL and the Article 15 rendered was inaccurate or unjust.  The orders adjusting his report date to 26 September 2002 may simply have reflected a new report date after the applicant failed to report to Korea on 1 September 2002.

2.  The record shows that prior to accepting the Article 15 the applicant was afforded the opportunity to consult with counsel and the right to demand trial by court-martial.  The record also shows that the applicant elected to submit matters in his defense in person.  Therefore, he had an opportunity to present copies of his orders changing his report date and any other matters in defense, extenuation and/or mitigation.  The commander signed the Article 15 indicating that he had considered all matters presented prior to making his final decision.  The applicant did not appeal the Article 15.

3.  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.  The applicant argues that he was not AWOL; his report date to Korea was changed to 26 September 2002.  However, he provides no evidence to support his claim and based on the fact that he was reduced to the grade of E-5, it appears that the commander was convinced beyond a reasonable doubt that the applicant was AWOL.

4.  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 for the purpose of removing the Article 15 from his OMPF.  Since there is no basis to remove the Article 15 from the applicant's OMPF, there is likewise no basis to grant his request to restore his rank to E-6. address 



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JA____  __SF ___  ___RV  __  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.




____ James Anderholm______
          CHAIRPERSON




INDEX

CASE ID
AR20060013071
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070306
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.
100.00
2.

3.

4.

5.

6.