RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 July 2007
      DOCKET NUMBER:  AR20070008743


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Mr. William F. Crain              |     |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 a DA Form 2627, Record of
Proceedings under Article 15, UCMJ, be removed from the restricted fiche
(R-fiche) of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that due to its continued presence,
another Article 15 is sitting in his performance fiche (if there is
already one Article 15, the second must be on the performance fiche).  He
adds that he has 16 years in the service and with this situation, during
every promotion board, it will be highly unlikely he will be picked up
[for promotion].

3.  The applicant continues that this violation was for speaking to his ex-
wife on the custody of their children who were awarded to him by the court.
 Going through that, he states, was a very traumatic experience.  Due to
this Article 15 being present, the Article 15 from 2005 could not be placed
in his restricted fiche as intended by his battalion commander.  He and his
other commanders have written letters on his behalf believing these item
have served their purpose and that he is worthy of the next rank.

4.  In support of his application, the applicant provides a copy of the
DA Form 2627, Record of Proceedings under Article 15, UCMJ, administered
to him on 17 June 1998, and the memorandums of support dated 25 January
and 22 May 2006, and 1 June and 25 June 2007 he alleges support removal
of the non-judicial punishment action from the restricted portion of his
OMPF.

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 Staff Sergeant,
at Fort Drum, New York.

2.  The evidence shows that on 17 June 1998, he received punishment,
under the provision of Article 15, of the UCMJ, for willfully disobeying
a lawful command from his superior commissioned officer, on 13 May 1998.
The punishment imposed on the applicant for this violation of the UCMJ
was extra duty for 14 days.  The commander who imposed the punishment
directed that the original DA Form 2627 be filed in the applicant's R-
fiche.  The applicant neither appealed the punishment nor the filing
instructions ordered by the officer who imposed the nonjudicial
punishment.
3.  The executive officer/disbursing officer of the applicant's unit
provided a memorandum of support for the applicant on 25 January 2006;
however, the memorandum is a repeat of the same memorandum he submitted
in the applicant's defense on 25 June 2005, while he awaited nonjudicial
punishment for another violation of the UCMJ.  The text of the memorandum
has no recommendation for the withdrawal of the nonjudicial punishment
from the applicant's restricted fiche.

4.  The applicant submitted a copy of a memorandum/letter from a captain
who at the time was assigned to Headquarters, Joint Task Force (CJTF) –
76, in Afghanistan.  It is noted the captain did not identify his
position and/or command relationship to the applicant.  In this
memorandum/letter, Subject:  Letter of Input for Non-commissioned Officer
Evaluation Report (NCOER), dated 22 May 2006, the captain described the
applicant's performance of duty; however, no reference is made to the
nonjudicial punishment the applicant received in 1998, nor does he make a
recommendation for the disposition of the non-judicial punishment.
No recommendation was made, it is believed because it was written for
another purpose altogether.  It was additionally noted, this same
memorandum was submitted for the Board's consideration in conjunction
with another request he submitted to the Board.

5.  The applicant's battalion commander recommended that a letter of
reprimand be removed from the applicant's performance fiche and placed in
the restricted fiche.  The applicant's performance fiche does not have a
letter of reprimand filed on it.  The applicant's present request is for
the removal of a non-judicial punishment from his restricted fiche.

6.  Army Regulation (AR) 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.

7.  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 (emphasis
added).

8.  AR 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 in 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 in 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.

9.  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.

10.  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 this information 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.

11.  AR 600-8-104 provides policy and procedure for maintenance of a
Soldier's OMPF.  Paragraph 2-2.b. states that the custodian for an active
Army enlisted Soldier's OMPF are the Commander, Army Human Resources
Command-Indianapolis [formerly the US Army Enlisted Records and Evaluation
Center (USAEREC)], Fort Benjamin Harrison, Indiana.

12.  Paragraph 2-4.a. states that once placed in the OMPF, the document
becomes a permanent part of that file.  The document will not be removed
from a fiche or moved to another part of the fiche unless directed by,
among other agencies, the Army Board for the Correction of Military Records
(ABCMR) or the OMPF custodian when documents have been improperly filed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the removal of a record of nonjudicial
punishment which was properly filed in the restricted fiche of his OMPF.

2.  The evidence shows that the DA Form 2627 was filed as directed by the
officer who administered the non-judicial punishment after carefully,
objectively thinking about his decision where to file the Article 15 and
the impact that it might have on the Soldier's career, including the
impact it may have on future promotion and assignment actions.

3.  The evidence also shows that after the DA Form 2627 was appropriately
administered, the applicant was given an opportunity to appeal the
punishment.  At the time the Article 15 was imposed, the applicant
neither appealed the punishment nor the filing instructions ordered by
the officer who administered the non-judicial punishment.

4.  Applicable 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
and there are no provisions for the removal of a DA Form 2627 from a
Soldier's OMPF.

5.  The R-fiche, that portion of the applicant's OMPF in 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 from 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.
 Therefore, it is concluded that the DA Form 2627 is properly filed, and,
clear and compelling evidence has not been submitted that would serve as a
foundation for the total removal of the DA Form 2627 from the R-fiche of
the applicant's OMPF.  Filing of the DA Form 2627 in the R-fiche of the
applicant's OMPF was not in error or unjust.
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.

7.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The memorandums/letters the
applicant submitted for consideration by the Board were not written to
support his request for removal of the DA Form 2627 from his OMPF.  These
were written for other purposes; hence, no recommendation was contained in
them for a disposition of the DA Form 2627 in his OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___A____  __JM____  _WFC __  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 E. Anderholm_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070008743                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070712                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |134.0000                                |
|2.                      |126.0000                                |
|3.                      |126.0600                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]