RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070013556 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Michael J. Flynn

Member

Ms. Sherry J. Stone

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 removal of Record of Proceedings under Article 15 of the Uniform Code of Military Justice (DA Form 2627), dated 6 June 2000, from the restricted fiche (R-fiche) of his Official Military Personnel File (OMPF).

2.  The applicant states that the front page of the Article 15 form states that he was given a letter of reprimand.  He further states that seven years have lapsed since this regrettable offense which is also preventing him from being appointed to the Command Sergeant Major (CSM) program.  He concludes that he has served honorably for over 20 years and knows that he can even serve better as a CSM. 

3.  The applicant provided a copy of the DA Form 2627, his Enlisted Record Brief (ERB), and a memorandum, dated 12 June 2007, titled Release of Restricted OMPF Information to the FY07 CSM/SGM/SMC Selection Board. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army sergeant major (SGM) with over 20 years of active service.  His military occupational specialty (MOS) is 92Y (Supply Specialist).  

2.  On 5 May 2000, the applicant was notified by the commander, Headquarters Command, Fort Hood, Texas, that he intended to impose nonjudicial punishment (NJP) against him for violating a lawful general regulation by wrongfully soliciting the sale of mutual funds to four Soldiers while on duty.  The applicant elected not to demand a trial by court-martial and chose to have the matter disposed of at a closed hearing.  The applicant requested the opportunity to have a representative speak on his behalf, and presented matters in defense, mitigation, and/or extenuation.

3.  On 6 June 2000, the commander, having considered all matters presented in defense, mitigation, and/or extenuation, imposed the following punishment on the applicant: a forfeiture of $1,213 pay for two months (suspended to be automatically remitted if not vacated before 3 December 2000) and a Local Letter of Reprimand.  The Commander directed that the Article 15 be filed in the restricted section of the applicant's OMPF.

4.  There is no record of a letter of reprimand in the applicant's performance or restricted fiche. 

5.  The applicant was promoted to master sergeant (MSG) on 1 December 2002 and to sergeant major (SGM) on 1 September 2006.

6.  The applicant's records show that he was considered-but not selected-for appointment to the Command Sergeant Major Program by the FY05, FY06, and FY07 CSM /SGM/SMC Selection Boards.  In each instance, his disciplinary data from the restricted fiche was released to the Selection Board.  

7.  Army Regulation 27-10 (Military Justice) 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 performance section 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 ranks of sergeant (SGT) and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section 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.

8.  Paragraph 3-18 of the military justice regulation contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure that the soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15. It further stipulates that Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, request to be accompanied by a spokesperson, an open hearing and to examine available evidence. 

9.  Paragraph 3-43 of the military justice regulation contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates 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.  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; 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. 

11.  Paragraph 7-2 of the unfavorable information regulation contains guidance on appeals for removal of OMPF entries.  It states, in pertinent part, the burden of proof to support removal of a document filed in the OMPF 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 provides provisions that allow the transfer of a DA Form 2627 from the performance section to the restricted section of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Article 15 imposed against him should be removed from his OMPF to allow him to successfully compete for the CSM program.  

2.  Evidence of record shows that despite the Article 15 in his OMPF, the applicant was selected for promotion to MSG in 2002 and to SGM in 2006.  There is no evidence and the applicant has not provided sufficient evidence to show that the Article 15 itself or the wording of "Letter of Reprimand" on the front of the form is the reason for his non-selection for the CSM program.  The applicant has also failed to demonstrate consideration of the Article 15 constituted an injustice, even if its consideration has caused him non-selection for CSM.

3.  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.



4.  In order to justify the correction of military records the applicant must satisfactory show or it must otherwise appear that the record is in error or unjust. The applicant failed to submit sufficient evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to a relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __mjf___  __sjs___  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.




							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070013556
SUFFIX

RECON

DATE BOARDED
20071211
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
126.0600
2.

3.

4.

5.

6.