IN THE CASE OF:	

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080007983 


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 a DA Form 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)), be removed from his Official Military Personnel File (OMPF) and that he be restored to the rank and pay grade, Sergeant, E-5.

2.  The applicant states, in effect, that he received an Article 15 while he was assigned to 2nd Battalion, 44th Air Defense Artillery, Fort Campbell, Kentucky, but the person who signed the punishment portion of the Article 15 had no assumption of command orders to complete the Article 15.  Trial Defense Service (TDS) at Fort Campbell has no record of his Article 15 or the assumption of command letter [sic].  The applicant adds that he went to the TDS and to legal in Korea and was told to fill out an Army Board for Correction of Military Record (ABCMR) application to fix his rank.  Copies of the Article 15, he states, are in the restricted section of his OMPF.

3.  In support of his application, the applicant provides a copy of the DA Form 2627 he was administered on 2 April 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on the date of his application to this Board, he was serving on active duty, in the Republic of Korea, in the rank of Specialist.

2.  The evidence shows that on 6 April 2007, the applicant received field-grade nonjudicial punishment, under the provision of Article 15, of the UCMJ, for making a false official statement, and for wrongfully advising another Soldier to make a false official statement on 19 February 2007.  The commander who offered the Article 15 was a Lieutenant Colonel R______ E. W____, the Battalion Commander of 2nd Battalion, 44th Air Defense Artillery.

3.  The punishment imposed on the applicant for this violation was a reduction in rank and pay grade to Specialist, E-4; forfeiture of $1,031.00 per month for two months, suspended, to be automatically remitted if not vacated before 3 October 2007; extra duty for 45 days; and restriction for 45 days, suspended, to be automatically remitted if not vacated before 3 October 2007.

4.  Lieutenant Colonel R______ E. W____'s printed name appears in the block for imposition of punishment; however, Major R_____ L. T_____, the Battalion Executive Officer, actually signed the block imposing the punishment.

5.  The commander who imposed the punishment directed that the original DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The applicant did not appeal either the punishment or the filing instructions ordered by the officer who imposed the nonjudicial punishment.

6.  The applicant alleges that the TDS at Fort Campbell has no record of his
Article 15 or assumption of command orders, in effect, for the individual whose name appears on his Article 15.  The applicant adds that he went to the TDS and to legal in Korea and was told to fill out an ABCMR application to fix his rank.  The applicant applied to this Board to request removal of the DA Form 2627 from his OMPF; however, he has provided no documentary proof of his consultations with the TDS at Fort Campbell and for advice given him by the TDS in Korea.  Further, the applicant has presented no evidence to show his Article 15 or assumption of command orders would normally be kept at the TDS office.

7.  Army Regulation 15-185 provides the policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

8.  Army Regulation 600-37 sets forth policies and procedures to (a) authorize placement of unfavorable information about Army members in their individual 
official personnel files; (b) to ensure that unfavorable information that is 
unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files; and (c) 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 their official personnel files. 

9.  Paragraph 7-2, of the above referenced regulation, states that once a document has been directed for filing 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.  The regulation contains provision for the transfer of a DA Form 2627 from the performance portion (P-Fiche) to the restricted portion (R-Fiche) of the OMPF; however, there are no provisions for the removal of a DA Form 2627 from the OMPF (emphasis added).

10.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, of the Manual for Courts Martial.  It states, in pertinent part, that the decision whether to file a record of nonjudicial punishment in the 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 rank of sergeant and above, the original of the DA Form 2627 will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance 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.

11.  Paragraph 3-43, of the above referenced regulation, contains guidance on the transfer or removal of records of DA Forms 2627 from the OMPF.  It states, in pertinent part, that application for removal of an Article 15 from a Soldier's OMPF based on error or injustice will be made to the ABCMR.  It further states 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.

12.  Army Regulation 27-10, paragraph 3-7, also specifies who may impose nonjudicial punishment.  It states, in pertinent part that Commanders, unless otherwise specified in the regulation, or if authority to impose nonjudicial punishment has been limited or withheld by a superior commander, any commander is authorized to exercise the disciplinary powers conferred by Article 15.  The term commander, as used in this regulation, means a commissioned or warrant officer 

who, by virtue of that officer's grade and assignment, exercises primary command authority over a military organization or prescribed territorial area, that under pertinent official directives is recognized as a command; and, the term, imposing commander, refers to the commander or other officer who actually imposes the nonjudicial punishment.

13.  Army Regulation 27-10, paragraph 3-8.c. further specifies that in those cases where administrative error results in incorrect entries on a DA Form 2627 or DA Form 2627-1, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.

14.  Army Regulation 600-20, paragraph 2-8.a. specifies that if a commander of an Army element, other than a commander of a headquarters and headquarters element, dies, becomes disabled, retires, is reassigned, or is temporarily absent, the senior regularly assigned United States Army Soldier will assume command.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the removal of a record of nonjudicial punishment which appears to have been properly filed in the restricted section of his OMPF even though the signature of the commander who administered the nonjudicial punishment is not the same commander whose signature block appears on initial reading of the DA Form 2627.  The applicant also requests that the rank and pay grade he lost as a result of the administratively incorrect DA Form 2627 be restored to him.

2.  The evidence shows that the DA Form 2627 was filed as directed by the officer who administered the nonjudicial punishment after carefully and objectively thinking about his decision where to file the Article 15 and the impact that it might have on the Soldier's career, including the impact it may have on future promotion and assignment actions.

3.  The evidence also shows that after the DA Form 2627 was appropriately administered, the applicant was given an opportunity to appeal the punishment.  At the time the Article 15 was imposed, the applicant neither appealed the punishment nor the filing instructions ordered by the officer who administered the non-judicial punishment.

4.  Applicable regulation states that, once a document has been directed for filing in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority and there are no provisions for the removal of a DA Form 2627 from a Soldier's OMPF.

5.  The applicant contends that because the name typed on the DA Form 2627 and the signature that was entered on the form are different; because the TDS at Fort Campbell does not have a copy of the Article 15; and because the TDS does not have a copy of the individual's assumption of command orders, the Article 15 is invalid and should be removed from his OMPF and his rank and pay grade should be restored.  In the absence of evidence to the contrary, there is a presumption of administrative regularity; that the individual who administered the Article 15 was exercising his authority as an acting commander in the absence of the normally assigned commander.

6.  Army Regulation 27-10 specifies that in those cases where administrative error results in incorrect entries on the DA Form 2627 or on the DA Form 2627-1, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment (emphasis added).

7.  The DA Form 2627 that was administered to the applicant on 2 April 2007, appears to be properly filed, and clear and compelling evidence has not been submitted by the applicant that would serve as a foundation for the removal of the DA Form 2627 from the restricted section of his OMPF.  Based on a review of all the available evidence, it is concluded that the filing of the DA Form 2627 in the applicant's restricted section of his OMPF was not in error or unjust.

8.  By regulation, there must be clear and compelling evidence to support the removal of a properly completed, factually 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. 

9.  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 not met the burden of proof and his request is therefore denied.

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)                                         AR20080007983



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ABCMR Record of Proceedings (cont)                                         AR20080007983



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