IN THE CASE OF:	  

	BOARD DATE:	  08 July 2008

	DOCKET NUMBER:  AR20080006593 


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, the nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) that he received on 15 June 2006 be moved from the performance file to the restricted file of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, he was reduced to specialist/pay grade E-4 and removed from a team leader position as a result of his Article 15.  He further states he was reinstated to a team leader position upon reporting to a different company.  He states he has since been promoted to sergeant/pay grade E-5 and staff sergeant/pay grade E-6.  He further states his Article 15 has served the purpose intended and should be moved to the restricted file of his OMPF.

3.  The applicant provides a copy of his DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) and his DA Form 2166-8 (NCO [noncommissioned officer] Evaluation Report) (NCOER) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 15 October 2002 for a period of 4 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 21B (Combat Engineer).

2.  On 17 January 2006, the applicant reenlisted for a period of 4 years in pay grade E-5.
3.  On 15 June 2006, the applicant accepted NJP under Article 15, UCMJ, for violation of Article 134 by being disorderly, on diverse occasions during the month of May 2006, by "huffing air" and acting in a disruptive manner, which conduct was prejudicial to good order and discipline and was of a nature to bring discredit upon the Armed Forces.  The punishment imposed consisted of reduction to specialist/pay grade E-4 and forfeiture of $971 pay for 2 months.  That portion of punishment pertaining to forfeiture of $971 pay for 2 months was suspended to be automatically remitted if not vacated before 14 August 2006.  

4.  The applicant's commander directed the original DA Form 2627 be filed in the applicant's performance fiche of his OMPF.  The applicant did not appeal his punishment.

5.  On 1 June 2007, the applicant was promoted to sergeant.

6.  An NCOER for the period from 1 June 2007 to 31 October 2007 shows the applicant's principal duties as a team leader of a three man team in a sapper engineer company where he was responsible for the training, health, welfare, morale, and deployment of those assigned to him.  The applicant's rater made the comments that the applicant is "loyal to superiors and the unity" and "strives for team effort and accomplishes all assigned tasks."  His rater rated his overall potential for promotion and/or positions of greater responsibility as "fully capable."  His senior rater made the comments that the applicant "can work in positions of greater responsibility; unlimited potential" and "performed his duties as a team leader in a professional and disciplined manner."  His senior rater rated him successful in overall performance and superior in overall potential for promotion and/or service positions of greater responsibility.

7.  On 1 January 2008, the applicant was promoted to staff sergeant.

8.  On 28 February 2008, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) to have his Article 15 moved from the performance section to the restricted section of his OMPF.

9.  On 29 February 2008, the applicant reenlisted for a period of 2 years.

10.  On 3 April 2008, the DASEB voted to deny the applicant's petition to transfer the Article 15, dated 15 June 2006, from the applicant's performance file to the restricted file of his OMPF.  According to the DASEB Decision Summary, the applicant had not provided and the DASEB did not find sufficiently clear and convincing evidence to prove the intent of the Article 15 had been served and that it was in the best interest of the Army to transfer the Article 15 at that time.

11.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; to determine whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and to determine the amount and nature of any punishment if punishment is appropriate.  This regulation further provides that NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures.

12.  Army Regulation 27-10 further provides that an enlisted Soldier (sergeant and above) may request the transfer of a record of NJP from the performance section of their OMPF to the restricted section.  This request must be supported by substantive evidence that the intended purpose of Article 15 has been served and that transfer of the record is in the best interest of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the NJP under Article 15, UCMJ he received 
on 15 June 2006 should be moved from the performance file to the restricted file of his OMPF.  

2.  Since his Article 15, the applicant has been assigned duties wherein he is responsible for the training, health, welfare, morale, and deployment of those personnel assigned to him.  This in and of itself attests to the confidence of the applicant's commander in his leadership potential and willingness to get the job done.  

3.  The applicant's promotion to staff sergeant, a position of even greater authority and responsibility, attests to his commander's special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  

4.  Although only 2 years have past since the applicant received the Article 15, the fact that he has been twice promoted in the NCO ranks since that time clearly shows the applicant has corrected his deficiency and has continued with his career.

5.  Therefore in view of the above, notwithstanding the decision of the DASEB, there is substantive clear and convincing evidence to prove the intent of the Article 15 has been served and it would be in the best interest of the Army to move the DA Form 2627, dated 15 June 2006, to the restricted file of the applicant's OMPF.

BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 moving the applicant’s DA Form 2627 that was administered on 15 June 2006 from the performance section to the restricted section of his OMPF.



      ___        XXX                ___
                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)                                         AR20080006593



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ABCMR Record of Proceedings (cont)                                         AR20080006593



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