IN THE CASE OF:	  

	BOARD DATE:	  12 June 2008

	DOCKET NUMBER:  AR20080002295 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the non-judicial punishment (NJP) action imposed on him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 4 November 2003 be set-aside; and that the Record of Proceedings Under Article 15, UCMJ (DA Form 2627) be removed from his record. 

2.  The applicant states, in effect, that proper procedures were not followed during the NJP process.  He claims he was never sworn in for the Sworn Statement (DA Form 2823), and was never officially questioned on the incident.  He further states that regardless of whether proper procedures were followed, he never made a false official statement of any kind.   

3.  The applicant provides a copy of the DA Form 2627 in question in support of his application.  


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he initially enlisted into the Nevada Army National Guard (NVARNG) for a period of 8 years on 17 August 1994.  He was trained in, awarded, and served in military occupational specialty (MOS) 
95B (Military Police).  

3.  On 2 November 2003, while serving on active duty as a staff sergeant (SSG) in support of Operation Enduring Freedom in Ba'qubah, Iraq, the applicant was notified that his unit commander was considering whether he should be punished under Article 15 of the UCMJ for wrongfully making a false official statement.

4.  On 4 November 2003, the applicant elected not to demand a trial by 
court-martial, and instead chose for the matter to be handled by his battalion commander at a closed hearing.  He also elected not to submit matters in defense, mitigation, and/or extenuation, and choose not to have someone speak in his behalf.  

5.  On 4 November 2003, the applicant’s company commander, after having considered all matters presented at a closed hearing, imposed the following punishment on the applicant:  a forfeiture of 7 days of pay and 4 days of extra duty and restriction.  The unit commander directed the DA Form 2627 be filed in the restricted (R) portion of the applicant’s Official Military Personnel File (OMPF).  The applicant elected not to appeal the punishment.  


6.  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. 

7.  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 (P) portion of the OMPF to the R portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.

8.  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 NJP on the P-portion 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 on the P or R portion 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.

9.  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. 
10.  Paragraph 3-28 of the military justice regulation provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

11.  Paragraph 3-28 further states that clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the soldier.  It further states that normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

12.  Paragraph 3-43 of the military justice regulation contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states, in pertinent part, that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the Article 15 in question should be set-aside based on injustice was carefully considered.  However, there is insufficient evidence to support this claim.

2.  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.

3.  The evidence of record confirms the applicant’s Article 15 processing was accomplished in accordance with the governing law and regulation, and that his rights were fully protected throughout the process.  


4.  The applicant was notified of the commander’s intent to handle the offense in question under the provisions of Article 15.  After being afforded the opportunity to consult with legal counsel, he elected not to demand a trial by court-martial and elected to have his case disposed of through Article 15 proceedings at a closed hearing with his commander.  

5.  The evidence clearly shows the applicant was aware he had the right to fully present his case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to an open hearing, and to examine available evidence at the time he made these elections.  

6.  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

___x ____  ___x____  ___x____  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.




       _   ___x____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080002295



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ABCMR Record of Proceedings (cont)                                         AR20080002295



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