RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070010746 


	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. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

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 her record of punishment under Article 15, Uniform Code of Military Justice (UCMJ), dated 20 February 2003, be removed from her "P" (Performance) fiche, of her official military personnel file (OMPF), to the "R" (Restricted) fiche in order to compete with her peers for promotion.

2.  The applicant states, in effect, that in her previous application, she requested that the Article 15, under UCMJ, be removed in its entirety due to the fact that it had been more that 3 years since (now almost 5 years) since the administering of the Article 15.  She has shown that she has learned from that terrible mistake and will not repeat it.  At the time, she was in the process of submitting a Warrant Officer (WO) packet after waiting for what she thought would be long enough to prove to peers and the officers appointed over her that she could excel in adversity.  She was denied removal of her Article 15, under UCMJ, in her previous application, and this ended up being the sole reason she was turned down from her only chance at being able to compete for WO.  

3.  She states that her branch did not accept applicants after their 12th year mark and that was the only chance she had prior to surpassing 12 years in the Army.  This document is about to threaten her chances again at being able to compete fairly for advancement to sergeant first class (SFC/E-7).  Due to this mistake, she jeopardized her rank which resulted in extra duty for 45 days.  She lost her husband at the time and became a single parent.  She worked twice as hard as her peers to show that she was a strong Soldier with dedication to the Army.  She was passed over for selection to SFC/E-7 to further her career.  She was hoping that this incident did not follow her for the rest of her career and hinder her from trying to better herself, advance, and compete with her peers and continued to do what she loves the most; great things for the Army.

4.  The applicant provides several documents from her OMPF in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on the date of her application to this Board, she was serving on active duty, in the rank of staff sergeant (SSG/E-6).

2.  On 20 February 2003, the applicant was punished under Article 15, for wrongfully committing an indecent act with a male sergeant, by engaging in sexual conduct, in the presence of three other Soldiers on 4 February 2002. Additionally, the Article 15 stated that the applicant, a married woman, wrongfully had sexual intercourse with this sergeant who was a married man, not her husband.  Her punishment consisted of a reduction to pay grade E-4, suspended, and extra duty for 45 days.

3.  The applicant did not demand trial by court-martial and requested a closed hearing.  She elected to present additional matters in her own behalf pertinent to her record of nonjudicial punishment.  The applicant’s commander directed that the Article 15, dated 28 November 2003, be filed in the "P" fiche, of her OMPF. 
She elected not to appeal the punishment imposed.

4.  The applicant provides several copies of her AER (Academic Evaluation Reports) which shows that she completed BNCOC (Basic Noncommissioned (NCO) Officers Course), achieved superior evaluations, and was selected to the Commandant's List based on her academic achievement.  She completed the ANCOC (Advanced NCO Course) and achieved superior results in completing course requirements while attending both courses.  While at ANCOC, among other accomplishments, she was selected to give a graduation speech to Advanced Individual Training (AIT) graduates; earned 24 credit hours toward her Information Technology degree while enrolled in ANCOC; obtained Level II certifications in Systems Administration and Network Management Security; and was assigned as a platoon sergeant leading other students.  

5.  She provided several copies of her NCO Evaluation Reports (NCOER) which show that she received outstanding ratings for her performance prior to, during, and after receiving her Article 15, under the UCMJ.

6.  The applicant provided a copy of Permanent Orders Number 134-1, dated 13 May 2004, which shows that she was awarded the Army Achievement Medal, for meritorious achievement, from 1 January 2004 to 31 March 2004, for selection as the Personnel Information Systems Directorate Soldier of the Quarter, for the second quarter, FY04 (fiscal year 2004).

7.  The applicant provided a copy of a recommendation for appointment as a WO memorandum from her commander, dated 14 October 2005.  He highly recommended her for selection to WO Candidate School (WOCS).  He commented on her professionalism and demonstrated technical knowledge and attention to detail required to being a successful WO.  He concluded that she was confident, liked to be challenged, and would excel at any task. 


8.  The applicant provided two Letters of Commendation, dated 22 June 2006, which commended her for outstanding performance during her Army Physical Fitness Test, administered on 13 June 2006 and, for her selection to the Commandant's List upon completion of BNCOC.

9.  On 28 November 2005, the Director, CONUS (Continental United States) Theater Network Operations and Security Center, endorsed the applicant for WOCS. 

10.  The applicant has provided no evidence to show that she applied to the Department of the Army Suitability Evaluation Board (DASEB) for transfer of the Article 15.  The DASEB does not have the authority to remove the Article 15 from the applicant's performance fiche.  It only has the authority to direct the results of non-judicial punishment be transferred to the restricted fiche.

11.  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. 

12.  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.

13.  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.



14.  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 record of non-judicial punishment dated 20 February 2003, from her OMPF was carefully considered.  The evidence shows that the DA Form 2627 was filed as directed by the officer who administered the 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 February 2003 was properly filed on the "P" fiche of the applicant's OMPF.

4.  The applicant alleges that the record of NJP under Article 15 has served its purpose and should be removed so that she can compete with her peers for promotion.   

5.  The evidence of record shows that since imposition of the non-judicial punishment, her commitment and dedication has not faltered.  In fact, based on her successful performance as a student in BNCOC and ANCOC, she has demonstrated that her conduct for which she was punished was out of the norm for her.  She has indeed, according to the evidence, reformed herself and has become a truly "outstanding Soldier."  She is making, and can continue to make a positive impact by her continued service in the Army either as an enlisted Soldier or as a warrant officer.  She is deserving of having the record of non-judicial punishment removed from her "P-fiche" and transferred to the "R-fiche" to allow her to compete for promotion, selective assignments, and possible appointment as a warrant officer. 
6.  Considering the nature of the 4 February 2002 offense involved, and the fact that the punishment has served the purpose for which it was intended, in the interest of justice, it would be appropriate to remove the record of punishment dated 20 February 2003 from the applicant’s "P" fiche to her "R" fiche of his OMPF.  The applicant’s overall record supports her request.  

7.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

BOARD VOTE:

_BPI ____  __TMR__  __GTP__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring her record of punishment under Article 15, UCMJ, dated 20 February 2003, from the "P" fiche to the "R" fiche of her OMPF.




____Bernard P. Ingold________
          CHAIRPERSON




INDEX

CASE ID
AR200700010746
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070830
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR  active duty
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
123
2.

3.

4.

5.

6.