RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  05 February 2008
	DOCKET NUMBER:  AR20070011433 


	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. Deyon D. Battle

Analyst


The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

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 that his Record of Proceedings Under Article 15, Uniform Code of Military Justice (DA Form 2627), dated 24 August 1990, 5 June 1978, and 15 September 1976, be expunged from his Official Military Personnel File (OMPF).

2.  The applicant states that he does not remember what happened.  He states that an impossible commander gave him an unsafe order, which he refused.  He states that 1 year later he was under new leadership, and that he was promoted to the pay grade of E-5.  He states that the recruiting related incident was pushed through by the company first sergeant who was relieved of his duties and sent to Korea 2 months later.  He states that he was left with no Noncommissioned Officer Evaluation Reports because no one was qualified to rate him; and that, thanks to his branch understanding the situation, he went to the Advanced Noncommissioned Course and then served proudly during Desert Shield/Desert Storm.  

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the United States Army Reserve (USAR) under the Delayed Entry Program in July 1975.  He enlisted in the Regular Army (RA) in October 1975.  He successfully completed his training as a power generator and wheel vehicle mechanic.  

2.  On 16 September 1976, nonjudicial punishment (NJP) was imposed against the applicant on 16 September 1976, for failure to obey a lawful order.  His punishment consisted of extra duty for 14 days.  The applicant indicated that he was not submitting matters in his own defense and/or mitigation, and he opted not to appeal the NJP.

3.  The applicant had NJP imposed against him on 5 June 1978, for willfully disobeying a lawful command.  His punishment consisted of a reduction to the pay grade of E-2 (suspended for a period of 90 days), a forfeiture of pay in the amount of $113.00, and extra duty for 14 days of extra duty.  The applicant submitted matters in his own defense and/or mitigation.  After consideration of all matters, so much of his punishment in excess of performance of 2 hours extra duty per day for 14 days was set aside.

4.  The applicant was discharged from the RA in October 1981, and he enlisted in the USAR in 8 March 1982.  On 30 March 1982, he reentered the RA for 3 years, and on 15 February 1983, he reenlisted in the RA for 6 years.  The applicant reenlisted in the Army for 4 years on 10 February 1989.

5.  On 2 July 1990, NJP was imposed against the applicant for being disrespectful in deportment toward a noncommissioned officer who was then in the execution of her office, by throwing a pencil on the desk, storming out of the and refusing to return when ordered.  His punishment consisted of a forfeiture of pay in the amount of $365.00 and removal from the recruiting station.  The applicant indicated that he was appealing the NJP and that he was submitting additional matters in his own defense.  After consideration of all matters, his commanding officer denied his appeal.

6.  The applicant was involuntarily discharged from the Army on 20 July 1991, under the provisions of Army Regulation 635-200, chapter 16-8, under the Fiscal Year 1992 Enlisted Voluntary Early Transition Program.  He had completed approximately 16 years, 4 months and 20 days of total active service.

7.  On 12 July 1992, the applicant enlisted in the USAR for 3 years.  The available records show that he is currently a member of the Army National Guard in an active status.

8.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and 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 official personnel files.  This regulation provides, in pertinent part, 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.  Normally, consideration of 






appeals is restricted to grades E6 and above, to officers, and to warrant officers. Although any soldier may appeal the inclusion of a document placed in his or her file under this regulation, the appeals of soldiers in grades below E-6 will only be considered as an exception to policy.  This does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

9.  Army Regulation 27-10, in effect at the time, stated in pertinent part, that the decision to file a record of NJP on the performance fiche or the restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander was final and was to be indicated in item 5, on the record of NJP.

DISCUSSION AND CONCLUSIONS:

1.  The punishments against the applicant were imposed in compliance with applicable laws, regulations, and policies.  The punishments imposed were neither unjust nor disproportionate to the offenses, and there is no evidence of any violation of any of the applicant’s rights.

2.  The Army has an interest in maintaining certain records and, the applicant has failed to provide evidence to show why the records of NJP should not remain a matter of record.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant the relief requested.  He had NJP imposed against him as a result of willfully disobeying a lawful command, for failing to obey a lawful order, and for being disrespectful in deportment to a noncommissioned officer in the execution of her duties.  Nowhere in his application to this Board does he indicate that the information contained on his DA Forms 2627 is in error or unjust.  

4.  He accepted NJP for his act of misconduct and the fact that many years have passed since these incidents occurred, does not mandate removal of the DA Forms 2627 from his OMPF.  They were filed in accordance with the applicable regulation and he has submitted no evidence to show otherwise.

5.  In order to justify correction of a military record the applicant must show 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __AU___  __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.





____Kenneth L. Wright____
          CHAIRPERSON




INDEX

CASE ID
AR20070011433
SUFFIX

RECON

DATE BOARDED
20080205
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  277
126.0000
2.  281
126.0000
3.

4.

5.

6.