RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 February 2007
	DOCKET NUMBER:  AR20070001020 


	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. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Ms. Linda D. Simmons

Member

Mr. Michael J. Flynn

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 his record of punishment under Article 15, Uniform Code of Military Justice (UCMJ), dated 28 October 2004, be removed from his restricted fiche, of his official military personnel file (OMPF).  

2.  The applicant states, in effect, that his Article 15, UCMJ, dated 28 October 2004, was unjust due to location and other events concerning this unit.  The unit was placed in a state of question and some type of action had to be taken.  As a result, he was charged with an issue that should have been discarded or handled at a lower level.  Ten days following this incident, he was transferred to another company and selected to be a platoon sergeant and later moved to the S-3. 

3.  The applicant provides a copy of the Record of Proceedings under Article 15, UCMJ, dated 28 October 2004, and a copy of his NCO Evaluation Report (NCOER) for the period November 2004 through September 2005, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on the date of his application to this Board, he was serving on active duty, in the rank of sergeant first class (SFC).

2.  On 28 October 2004, the applicant was punished under Article 15, for disobeying a lawful order by a commissioned officer, which it was his duty to obey, by wrongfully visiting a female noncommissioned officer in her B-Hut, and for willfully and wrongfully exposing, in an indecent manner, to public view, his upper torso.  His punishment consisted of a forfeiture of pay of $1,490.00 pay per month for two months (suspended), 45 days extra duty and restriction, and an oral reprimand.

3.  The applicant elected not to appeal the punishment imposed or to submit additional matters in his own behalf pertinent to his record of nonjudicial punishment.  The applicant’s commander directed that the Article 15, dated 28 October 2004, be filed in the restricted fiche, of his OMPF. 

4.  The applicant provides a copy of his NCOER for the period November 2004 through September 2005, which shows that he received an outstanding rating for his performance after receiving his Article 15, under UCMJ.



5.  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. 

6.  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 of a 
DA Form 2627 from the OMPF.

7.  Army Regulation 27-10 (Military Justice), in effect at the time, prescribed the guidelines for the filing of nonjudicial punishment (NJP).  Paragraph 3-3b (2) states, in pertinent part, that the decision to file the original DA Form 2627 in the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  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 proper authorities listed in the regulation.  It also states, in pertinent part, that forms recording punishment imposed after 1 November 1982, are filed on the performance or restricted fiche of the OMPF as directed by item 5, DA Form 2627.  






DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to remove the DA Form 2627 in question from his 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.

2.  The evidence shows that the punishment administered under Article 15 of the UCMJ was administered in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the process.

3.  The applicant's record of punishment under Article 15 administered on 28 October 2004 was properly filed in the restricted fiche of the applicant's OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LDS ___  __BJE___  __MJF __  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.




_____Barbara J. Ellis_______
          CHAIRPERSON




INDEX

CASE ID
AR20070001020
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070201
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . .ACTIVE DUTY . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
123
2.

3.

4.

5.

6.