RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20070003488 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Ms. Linda M. Barker 

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 29 November 2006, be removed from his official military personnel file (OMPF).  

2.  The applicant states, in effect, that his Article 15, under UCMJ, was imposed to him as an injustice, bias, and vicious defamation.  It was filed in his restricted (R) fiche of his OMPF and he is requesting that it be removed, for the purpose of competing for CSM (Command Sergeant Major).  He was placed back as the company First Sergeant which was Number #1 in the battalion.  He states that the UCMJ was imposed to him as a method of justification for someone in leadership to take the blame for what some Soldiers' actions did as they compromised their integrity.  He exposed his case to the Brigade Commander, 6th Recruiting Brigade, USAREC (United States Army Recruiting Command); however, the brigade commander still decided to impose punishment on him, when it was clear that the facts did not warrant the punishment.  He concludes that this Article 15, under UCMJ, will keep his military career from progressing and that the CSM promotion boards will look at the "R" file. 

3.  The applicant provides a copy of his MOR (Memorandum of Reprimand), dated 6 December 2006; and a copy of his Article 15, dated 29 November 2006, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the Regular Army in the rank and pay grade of master sergeant (MSG/E-8). 

2.  On 29 November 2006, the applicant was punished under Article 15, of the UCMJ, for being disrespectful toward a commissioned officer, for failing to obey a lawful command from a commissioned officer, on two occasions, for wrongfully using provoking and reproachful words, on three occasions, and for wrongfully endeavoring to impede an investigation.  His punishment consisted of a forfeiture of pay, in the amount of $1,993.00 (with that portion in excess of $250.00 suspended) and a MOR. 





3.  The applicant elected not to appeal the punishment imposed or to submit additional matters in his own behalf.  The applicant’s commander directed that the Article 15, dated 29 November 2006, be filed in the restricted fiche, of his OMPF. 

4.  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. 

5.  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 a 
DA Form 2627 from the OMPF.

6.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM.  It states, in pertinent part, that the decision whether to file a record of nonjudicial punishment on the P-Fiche of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  Paragraph 3-37b (2) states, in pertinent part, that for Soldiers, in the rank of sergeant and above, the original of the DA Form 2627 will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 on the P-Fiche or R-Fiche of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final, subject to review by superior authority.






7.  Paragraph 3-43, of the above referred to regulation, contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF.  It states, in pertinent part, that application for removal of an Article 15 from a Soldier's OMPF based on error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further states that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

8.  AR 600-8-104 provides policy and procedure for maintenance of a Soldier's personal information.  The R-Fiche, of a Soldier's OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this fiche is strictly controlled and will not be released without written approval from the CG, PERSCOM [now the Commander, Human Resources Command]; the Commander, ARPERCEN; the Commander, ARNG Personnel Center, or the HQDA selection board proponent. 

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 29 November 2006 was properly filed in the restricted fiche of the applicant’s OMPF.

4.  The applicant’s contentions are noted; however, they do not support the removal of his non-judicial punishment from the restricted fiche of his OMPF.  

5.  The R-Fiche, that portion of the applicant's OMPF upon which the record of proceedings under Article 15 is filed, is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this fiche is strictly controlled and will not be released without written approval from the Commander, Human Resources Command, or the HQDA selection board proponent. 

6.  By regulation, there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.  Absent any evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removing the document in question from the applicant’s OMPF. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__e_____  __MJF___  __LB ___  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




_____Lester Echols________
          CHAIRPERSON




INDEX

CASE ID
AR20070003488
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR .ACTIVE DUTY
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
123
2.

3.

4.

5.

6.