IN THE CASE OF:
BOARD DATE: 21 January 2009
DOCKET NUMBER: AR20080017321
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, removal of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]) from the restricted portion of his Official Military Personnel File (OMPF).
2. The applicant states, in effect, he is requesting the company grade Article 15 in question be removed from the restricted portion of his OMPF. He states that it has not affected his career and should not be a big issue.
3. The applicant provides no documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that he initially enlisted in the Regular Army and entered active duty on 14 January 1997, and that he has continued to serve in that status through the present.
2. The applicants Enlisted Record Brief (ERB) shows he was promoted to staff sergeant (SSG)/E-6 on 1 May 2004, and that he is currently serving in that grade at Fort Knox, Kentucky.
3. On 17 September 2007, while the applicant was serving as an SSG at Fort Knox, he was notified that his company commander was considering whether he should be punished under Article 15 of the UCMJ for violating a general regulation by wrongfully downloading/accessing pornographic images on his Government owned computer.
4. On 21 September 2007, the applicant elected not to demand a trial by
court-martial, and instead chose for the matter to be handled by his company commander at a closed hearing. He also elected not to request a person to speak on his behalf and indicated he would not present matters in defense, mitigation, and/or extenuation. Subsequent to the hearing, the applicants company commander imposed the following punishment on the applicant: forfeiture of $720.00 ($520.00 suspended); and 14 days of restriction and extra duty. The company commander directed the DA Form 2627 be filed in the restricted portion of the applicant's OMPF. The applicant elected not to appeal the punishment.
5. 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 [Manual for Courts-Martial]. 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 clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldiers record by the ABCMR.
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. Chapter 7 of the unfavorable information regulation contains guidance on appeals and petitions for removal of unfavorable information from official personnel files. It states, in pertinent part, that once an official document has been properly filed 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that the DA Form 2627 in question should be removed from his OMPF because it was a company grade Article 15 and has not affected his career was carefully considered. However, by regulation, in order for the ABCMR to support removal of a properly completed, facially valid DA Form 2627 from a Soldiers record, there must be clear and compelling evidence of clear injustice and/or evidence that shows the document is untrue or unjust, in whole or in part. There is no evidence of record or independent evidence provided by the applicant that satisfies this regulatory burden of proof, and as a result there is an insufficient evidentiary basis to support removal of the Article 15 from the OMPF.
2. 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) AR20080017321
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ABCMR Record of Proceedings (cont) AR20080017321
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