RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 September 2007
      DOCKET NUMBER:  AR20070009850


      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             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Ms. Laverne V. Berry              |     |Member               |
|     |Mr. Ronald D. 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, in effect, that the 31 January 1996 Nonjudicial
Punishment (NJP) action imposed on him under the provisions of Article 15
that is filed in the restricted section of his Official Military Personnel
File (OMPF) be removed.

2.  The applicant states, in effect, that the Article 15 that is filed in
his OMPF should be removed because it has served its intended purpose.  The
applicant adds, that the Article 15, has been in his record for a long
period of time and he has had an exemplary career since the incident.  He
would like the Article 15 to be removed from his restricted record.

3.  The applicant provides a copy of the Record of Proceedings under
Article 15, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he was still serving on active duty at
Fort Belvoir, Virginia, as a Sergeant First Class/pay grade E-7, at the
time he submitted this application.

2.  The applicant's military service records contain a copy of a DA Form
2627, dated 29 January 1996.  This document shows, in pertinent part, that
on
29 January 1996, the applicant’s commander at Fort Hood, Texas, notified
the applicant of his intent to impose non-judicial punishment upon him for
disobeying a lawful order.  On 31 January 1996, the applicant affixed his
signature in Item
3 of the document indicating he did not demand trial by court-martial; that
he requested a closed hearing; and matters in defense,
mitigation/extenuation would be presented in person.  Following a hearing
where all matters presented in defense, mitigation, and/or extenuation were
considered; the commander affixed his signature in Item 4 of the document
directing the applicant's reduction to pay grade E4 (suspended for 4
months), a forfeiture of $300.00, pay, an oral reprimand and extra duty for
45 days.  Item 5 of this document also show that the commander directed
that the DA Form 2627 be filed in the restricted section of the applicant's
OMPF.  The applicant signed the document again, in Item 7, and indicated he
did not appeal the Article 15.  This document is filed in the restricted
section of the OMPF.

3.  On 1 September 2001, the applicant was promoted to Sergeant First
Class, pay grade E-7.

4.  The applicant’s OPMF does not indicate that he petitioned the
Department of the Army Suitability Evaluation Board (DASEB) for removal of
the Article 15 from his OMPF.

5.  Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures to authorize placement of unfavorable information about Army
members in individual official personnel files, ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files, and 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
official personnel files.

6.  Chapter 7 of Army Regulation 600-37 provides the policies and
procedures for appeals and petitions for removal of unfavorable information
from the OMPF.  It states that appeals and petitions for removal of
unfavorable information are to be directed to the DASEB.  Paragraph 7-2 of
this 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.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.
This document states that only those documents listed in Table 2-1 and
Table
2-2 is authorized for filing in the OMPF.  Depending on the purpose,
documents will be filed in the OMPF in one of three sections:  performance,
service, or restricted.

8.  Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 shows
that the DA Form 2627 is filed in either the performance or restricted
section of the OMPF, as directed by Item 5 of the DA Form 2627.

9.  Table 2-1 of Army Regulation 600-8-104 shows that approved requests for
the release of documents in the restricted section of the OMPF will be
filed in the restricted section of the OMPF.

10.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104
provides, in pertinent part, that the restricted section of the OMPF is
used for historical data that may normally be improper for viewing by
selection boards or
career managers.  Paragraph 2-6 provides an exception to this policy and
allows Command Sergeant Major (CSM) / Sergeant Major (SGM) promotion
boards, SGM Academy Selection boards, and CSM / SGM Retention boards to
review matters in the restricted portion of the OMPF.  The release of
information on this section is controlled.  It will not be released without
written approval from the Commander, U.S. Army Human Resources Command
(i.e., for enlisted Soldiers, formerly designated as Headquarters, U.S.
Army Enlisted Records and Evaluation Center) or the Headquarters,
Department of the Army (HQDA) selection board proponent.  This paragraph
also provides that documents in the restricted section of the OMPF are
those that must be permanently kept to maintain an unbroken, historical
record of a Soldier's service, conduct, duty performance, and evaluation
periods; show corrections to other parts of the OMPF; record investigation
reports and appellate actions; and protect the interest of the Soldier and
the Army.

11.  Paragraph 2-6 (Release of restricted data filed in the OMPF) of this
regulation provides strict guidelines on the release of information filed
in the restricted section of the OMPF and limits it to those government
agencies specifically identified in the paragraph.  This paragraph
provides, in pertinent part, that restricted data will not be given to any
other person or agency, without the approval of the Commanding General,
U.S. Army Human Resources Command or HQDA selection board proponent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the Article 15 he received for
disobeying a lawful order should be removed from his OMPF because it has
served its intended purpose was carefully considered.  However, there is
insufficient evidence to support granting the requested relief.

2.  By regulation, before finding a Soldier guilty during Article 15
proceedings, the commander must be convinced beyond a reasonable doubt that
the Soldier committed the offense.  The evidence of record confirms that
after being afforded the opportunity to consult with legal counsel, the
applicant elected not to demand a trial by court-martial and chose to have
his case disposed of through Article 15 proceedings at a closed hearing.
The applicant did not appeal the non-judicial action.  The commander
directed the punishment be effected, and the DA Form 2627 be filed in the
restricted fiche (i.e., section) of the applicant's OMPF.  The applicant
provides insufficient evidence to show that the DA Form 2627 is untrue or
unjust.  Therefore, the DA Form 2627 is deemed true and accurate and is
properly filed in the applicant's OMPF.

3.  The evidence of record shows that, with the exception of the command
sergeant major/sergeant major selection and retention boards, HQDA enlisted
selection boards are not routinely provided documents that are filed in the
restricted section of the OMPF.  Moreover, Army regulatory guidance
establishes strict requirements to prevent the unauthorized release of
information from the restricted section of the OMPF.  In this regard, the
applicant provides insufficient evidence to support his contention that the
documents currently filed in the restricted section of his OMPF will
prevent him from being promoted and not allow him to reach his full
potential in the U.S. Army.  The applicant’s OPMF already shows that since
the Article 15 was placed in his restricted section he has attained the
grade of Sergeant First Class pay grade E-7.

4.  By regulation, in order to remove a document from the OMPF, there must
be clear and convincing evidence showing that the document is untrue or
unjust.  The applicant provided no such evidence to this Board that the
documents are untrue or unjust in this case.  Therefore, the DA Form 2627,
of the applicant's OMPF was properly filed and should not be removed from
the applicant's OMPF.

5.  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 applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEA__  ___LVB__  ___RDG_  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                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/09/18                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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