RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  16 October 2007
	DOCKET NUMBER:  AR20070011909 


	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. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James E. Anderholm

Member

Mr. Joe R. Schroeder

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 the removal of a Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) (DA Form 2627) dated 5 February 2004 from his Official Military Personnel File (OMPF).

2.  The applicant states that he has learned the Army is changing and that keeping himself up to date on policy changes is a must.  Now as a first sergeant he understands the importance of accountability and why units change policies.  He further states that he wants to be a command sergeant major and has strived to be the best at everything that he does.  He also states that he has had no disciplinary action before or after this minor infraction.  

3.  The applicant provides copies of his Record of Proceedings Under Article 
15, UCMJ (DA Form 2627), Policy #1-8 Memorandum, Rights Warning (DA Form 3881), two Developmental counseling Forms (DA Form 4856), two Sworn Statements (DA Form 2823), Request and Authority for Leave (DA Form 31), Personnel Register (DA Form 647), a Staff Duty Roster for December 2003, and his Enlisted Record Brief.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was on active duty as a sergeant first class, pay grade E7.  He enlisted in the Regular Army on 25 June 1987.  He had attained the rank of sergeant first class on 1 May 2000.  He was serving as a unit first sergeant.

2.  On 13 April 2002, the applicant was assigned for duty with Headquarters and Headquarters Company (HHC), Special Operations Support Command (SOSCOM) (Airborne), Fort Bragg, North Carolina.

3.  On 19 November 2003, the applicant submitted a DA Form 31, requesting ordinary leave for the period from 22 December 2003 to 2 January 2004.  His supervisor recommended approval and it was signed by the approving authority. Item 16 (Return) indicates that the applicant returned from leave on 3 January 2004 and was signed back in by the staff duty noncommissioned officer (NCO).  Item 17 (Remarks) contains a statement indicating that the applicant could call the staff duty officer for the purpose of signing in or out.




4.  On 5 December 2003, the Commander, SOSCOM, issued Policy Number 
1-8, concerning leave, pass, permissive temporary duty (PTDY), and temporary duty (TDY).  Paragraph 3f of this document provided that all personnel assigned to HHC, SOSCOM, in the pay grade of E8 and above were authorized to phone in or out from leave, passes, PTDY and TDY. 

5.  On 16 December 2003, another DA Form 31 was completed for the applicant and signed only by his supervisor.  This form indicated the leave period to be from 21 December 2003 to 3 January 2004.  Item 17 (Remarks) contained the same entry as the previous DA Form 31.

6.  The Personnel Register (DA Form 647) for the period of the applicant’s leave indicates that he did not sign out on either 21 or 22 December 2003, but did sign in on 3 January 2004.  

7.  On 23 January 2004, the staff duty NCO, in a sworn statement, said that when the applicant called in to sign out on leave, he informed the applicant that he had to come in personally to sign out.  The staff duty NCO further stated that he did not remember the applicant coming in to sign out on leave.

8.  On 23 January 2004, the applicant was counseled on the policy requiring all service members in the pay grade of E7 and below to personally sign in and out of the unit.

9.  On 23 January 2004, the applicant was also counseled regarding his failure to properly sign in and out of his unit.  The counselor stated that the applicant had returned from TDY a day early but failed to inform his chain of command and did not sign back in to the unit.  He did not report to formation the following morning. With regard to the applicant’s scheduled leave, he stated that the applicant phoned the staff duty NCO at about 0900 hours and was informed that he had to report in personally to sign out on leave.  However, the applicant had already traveled a few hours from the installation and decided to not return to sign out on leave.  The counselor reminded the applicant that Army regulation required leave to start and end on post, at the duty location, or the location from which the Soldier commutes to duty.  The counselor reminded the applicant that he was a senior NCO performing the duties of a master sergeant position and was required to uphold the standards and policies set forth by the command.  The counselor required the applicant to read the applicable policies and to report back with his understanding of them.  The applicant agreed.



10.  On 2 February 2004, the commander informed the applicant that he was considering nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ.  The applicant was informed of his rights and was afforded the opportunity to consult with counsel.  The applicant did not demand trial by court-martial.  He requested a closed hearing and a person to speak on his behalf.  

11.  On 5 February 2004, the applicant accepted NJP for being derelict in the performance of his duties by willfully failing to physically report to the staff duty to sign out on leave.  The punishment included a forfeiture of $150.00 pay per month for one month (suspended), and 14 days of extra duty (4 days suspended).  The applicant did not appeal the punishment.  The commander directed filing of the NJP in the restriction section of the OMPF.

12.  AR 27-10 prescribes the guidelines for the filing of NJP.  It states, in pertinent part, that the decision to file the original DA Form 2627 on the performance or restricted fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case shows that the NJP was properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.

2.  The evidence also shows that he was afforded due process; in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.

3.  The applicant accepted NJP in lieu of demanding trial by court-martial and furthermore, did not appeal the punishment to a higher authority.

4.  The applicant has not provided any compelling evidence or argument to show that there are equitable reasons for removal of the NJP. 

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.

6.  In view of the above, the applicant’s request should not be granted.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRS___  _JEA ___  __SLP __  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.





__     Shirley L. Powers_____
          CHAIRPERSON




INDEX

CASE ID
AR20070011909
SUFFIX

RECON

DATE BOARDED
20071016
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
126
2.

3.

4.

5.

6.