RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2006
      DOCKET NUMBER:  AR20060013189


      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:

|     |Ms. Melinda Darby                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Ronald 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 that the Record of Proceedings under Article 15,
Uniform Code of Military Justice (UCMJ), dated 7 October 1993, and all
related documents be transferred from the performance portion of his
Official Military Personnel File (OMPF) to the restricted portion or be
removed entirely from his OMPF.  He  also requests a Standby Advisory
Board.

2.  The applicant states that he assumes responsibility for his past action
on 14 September 1993, for not completing a sensitive item check.  He states
this was 13 years ago and he has learned his lesson.  He also states that
he has been promoted three times since that action, with no other UCMJ
action.

3.  The applicant provides no additional documents in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 March 1988.  He
continued to serve on active duty through a series of reenlistments.

2.  He was promoted to sergeant on 1 February 1991.

3.  On 7 October 1993, the applicant accepted nonjudicial punishment under
Article 15, UCMJ, for being derelict in the performance of his duties while
in Mogadishu, Somalia, by failing to do a complete sensitive items check.
The applicant did not demand trial by court-martial, requested a closed
hearing in the Article 15 proceedings, and elected to present matters in
person.

4.  After consideration of all matters presented in the closed 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; a forfeiture of $250.00 pay per month for 2 months (suspended,
to be automatically remitted if not vacated before 7 January 1993); and
extra duty for 45 days.

5.  The imposing commander directed that the original DA Form 2627 (Record
of Proceedings under Article 15) be filed in the performance portion of the
applicant's OMPF.  The applicant declined to appeal the punishment.

6.  He was promoted back to sergeant on 1 October 1994 and to staff
sergeant on 1 December 1996.

7.  The applicant appealed to the Department of the Army Suitability
Evaluation Board (DASEB) on 13 January 1997.  The DASEB denied the
applicant’s request on 30 July 1997.

8.  The applicant was promoted to sergeant first class on 1 December 2000.

9.  The applicant is currently serving on active duty in the rank of
sergeant first class.

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 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.

13.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) governs
the enlisted promotions and reductions function of the military personnel
system. Paragraph 4-16 governs the rules for Standby Advisory Board
Consideration.  The regulation states that the Deputy Chief of Staff (DCS),
G-1 or designee may approve cases for referral to a Standby Advisory Board
upon determining that a material error exists.  Human Resources Command
(HRC) will determine if a material error existed in a Soldier’s OMPF when
the file was reviewed by a promotion board.  Error is considered material
when there is a reasonable chance that, had the error not existed, the
Soldier may have been selected.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received nonjudicial punishment imposed under Article 15,
UCMJ, on 7 October 1993 for being derelict in the performance of his duties
by failing to do a complete sensitive items check.  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 7 October 1993.

3.  The applicant was promoted back to sergeant within one year after he
received the Article 15.  He was promoted to staff sergeant on 1 December
1996.

4.  On 13 January 1997, the DASEB denied the applicant’s request to
transfer the Article 15 to his restricted fiche.  Nevertheless, on 1
December 2000, he was promoted to sergeant first class after consideration
by a Headquarters, Department of the Army, promotion selection board that
reviewed this Article 15.

5.  After careful review of this case, it has been determined that the
applicant’s commendable performance for over 13 years after the offense
(and 9 years after the DASEB denied his request to transfer the Article 15
to his restricted fiche) 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           7 October 1993, from the
performance portion to the restricted portion of the applicant’s OMPF.

6.  However, there appears to be no basis for forwarding the applicant’s
records to a Standby Advisory Board.  The filing of the Article 15 in the
performance portion of his OMPF was not an error.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

MD______  JR______  RG______  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by transferring the Article 15, dated 7 October
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
forwarding his records to a Standby Advisory Board.




                            Melinda Darby_________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013189                           |
|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          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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