IN THE CASE OF:	  

		BOARD DATE:	  13 November 2008

		DOCKET NUMBER:  AR20080013312 


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 DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 11 May 2004, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that after serving more than 15 years in the United States Army Reserve (USAR), he was ordered to active duty and entered after being granted a medical waiver based on his dependence on medication for diabetes.  He states that a Medical Corps (MC) Colonel instructed him to terminate his medication and to control his condition through exercise and his diet, which he did.  He claims he never had any problems during his USAR service; however, he began to experience a great deal of stress several months into his active duty service.  This stress and his attempt to stop his medication resulted in his blood sugar being out of control.  He states that it was his belief his superiors were aware of his medical condition and that he tried to perform to the best of his ability.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; DA Form 2627; MC Officer’s Statement; and Medical Record Documents.  


CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows that after having prior service in the United States Army Reserve (USAR), he immediately reenlisted in the USAR in the rank of sergeant (SGT) on 2 March 2001, for a six year period.  He was promoted to the rank of staff sergeant (SSG) on 1 December 2001.

2.  On 7 May 2004, while serving on active duty as a SSG, with Company B, William Beaumont Army Medical Center, El Paso, Texas, the applicant’s battalion commander notified the him that he was considering whether to punish him under Article 15 of the UCMJ for being disrespectful in language to a noncommissioned officer (NCO) on 9 April 2004; for being disrespectful in language and deportment toward a senior NCO on 26 April 2004; for being derelict in the performance of his duties on 19 April 2004; and for making a false official statement on 26 April 2004.

3.  On 11 May 2004, 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 an open hearing.  The applicant requested someone to speak on his behalf at the hearing and he elected to present matters in defense, mitigation, and/or extenuation.  He signed the DA Form 2627 confirming these choices.

4.  On 11 May 2004, subsequent to the open hearing, the applicant’s battalion commander, after having considered all matters presented in defense, mitigation and/or extenuation at a hearing, imposed the following punishment on the applicant:  reduction to the grade of sergeant (SGT) and forfeiture of $1,183.00 pay for 2 months (both suspended, to be remitted if not vacated on or before 
9 August 2004), and 14 days of extra duty.  The battalion commander directed the DA Form 2627 be filed in the performance portion of the applicant’s OMPF.  

5.  On 11 May 2004, the applicant elected not to appeal the punishment and signed the DA Form 2627 confirming this election.

6.  The applicant’s OMPF and submission contains no conclusive medical evidence to show that the applicant suffered from or was treated for any physical or mental condition that would have impaired his ability to perform his duties, or to maintain the standards of conduct expected of a NCO in the United States Army.  

7.  The applicant provides medical Progress Notes, dated 24 June 2004, which confirm, in pertinent part, that he was counseled about diabetics and informed to take his Glucontrol pill regularly.

8.  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.

9.  Paragraph 7-2c 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.  Article 15 records may be transferred upon proof that the intended purpose has been served or that transfer would be in the best interest of the Army.

10.  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 non-judicial punishment in the Performance portion of 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 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 or Restricted portions 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 military justice regulation contains guidance on the transfer or removal of records of non-judicial 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 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 DA Form 2627 in question should be removed from his OMPF was carefully considered.  However, neither the evidence of record nor the independent evidence provided by the applicant shows his medical condition or reliance on medication was the reason for his misconduct that led to the NJP action in question.  The evidence of record confirms the disposition and filing of the record of NJP he accepted on 11 May 2004, while he was serving in the rank of SSG, was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the NJP process.  

2.  The evidence of record also confirms that after being properly notified that his battalion commander was considering whether he should be punished under Article 15 and consulting with legal counsel, the applicant elected not to demand a trial by court-martial and requested the matter be handled by his battalion commander at an open hearing.  He also decided to have someone speak on his behalf and elected to submit matters in defense, mitigation, and/or extenuation.  

3.  Further, the record shows the applicant elected not to appeal the punishment and confirmed this decision on 11 May 2004, after the battalion commander had directed the filing of the DA Form 2627 in the performance portion of his OMPF.

4.  By regulation, in order to remove OMPF entries there must be evidence that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Further, in order for the ABCMR to support removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record, there must be clear and compelling evidence of an error or injustice.  Absent any evidence meeting these regulatory standards, there is an insufficient evidentiary basis to support removing the document in question from the applicant’s OMPF at this time.  

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.


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)                                         AR20080013312



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ABCMR Record of Proceedings (cont)                                         AR20080013312



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