IN THE CASE OF:	

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080018231 


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 16 January 2006 record of nonjudicial punishment be either expunged from his records or moved to the restricted portion of his Official Military Personnel File (OMPF).  He also requests his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his Discharge Certificate be changed to show his former rank of sergeant.

2.  The applicant states, in effect, that he believes his punishment was unduly harsh and long lasting.  He also states that he was under duress when he waived his right of appeal or court-martial.

3.  The applicant provides a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), an amendment to the order reducing him in rank, and a DD Form 214 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Army National Guard on 11 November 1996.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of infantryman.  The highest rank he attained while serving was sergeant/pay grade E-5.

2.  On 3 March 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom.

3.  On 31 October 2005 while deployed in Iraq, the applicant was recommended for field grade nonjudicial punishment under the provisions of Article 15 of the UCMJ for repeated failure to obey orders and policy regarding the disclosure of information on a web blog.

4.  On 16 January 2006, the applicant accepted field grade nonjudicial punishment under the provisions of Article 15 of the UCMJ for dereliction of duty and wrongfully and willfully posting to an internet web blog a detailed account relating to the destruction and recovery operations that resulted from a fatal enemy attack without receiving affirmative clearance, in violation of operational security policy and despite counseling informing him he could not post such blogs without prior approval by his command.  The applicant chose not to appeal the punishment imposed, which was an immediate reduction in rank to the grade of specialist/E-4.

5.  While the applicant's DA Form 2627 directed the original DA Form 2627 be filed in the performance portion of his OMPF, his DA Form 2627 and nonjudicial punishment-related documents are currently filed in the restricted portion of his electronic OMPF.

6.  On 14 April 2006, the applicant was released from active duty and returned to his National Guard unit following completion of his required active service.  His DD Form 214 erroneously showed the applicant in the grade of sergeant/E-5.  However, his DD Form 214 was later amended to show he was released from active duty in the grade of specialist/E-4.  He was honorably discharged from the Army National Guard on 16 July 2006 in the rank of specialist/E-4.

7.  Army Regulation 27-10 (Military Justice), in pertinent part, provides the applicable policies for nonjudicial punishment.  The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, and action on appeal or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627.  The regulation states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a Soldier's record.  It also provides that the officer imposing nonjudicial punishment determines whether the report of nonjudicial punishment (DA Form 2627) is to be filed in the restricted or performance portion of the Soldier's OMPF.
8.  Army Regulation 635-5 (Separation Documents) provides instructions for the preparation of the DD Form 214.  It states, in pertinent part, that item 4a (Grade, Rate or Rank) and 4b (Pay Grade) will be completed to show the active duty grade or rank and pay grade at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends that his punishment was too harsh and that he was under duress when he waived his right of appeal or court-martial, he did not provide any evidence supporting this contention.  The nonjudicial punishment was imposed in compliance with applicable laws, regulations and policies.  Based on the repeated nature and severity of the offense, the field grade nonjudicial punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any mitigating circumstances or substantive violation of any of the applicant's rights.

2.  The applicant's request that his nonjudicial punishment record be removed from his OMPF is noted.  However, there is no evidence, and the applicant has provided no evidence, that the nonjudicial punishment was in error or unjust.  Army Regulation 27-10 specifically precludes the removal of a valid DA Form 2627 from a Soldier's record without compelling evidence.  Removal of the applicant's nonjudicial punishment from his records, therefore, is not warranted.

3.  The applicant's alternative request was that his nonjudicial punishment be moved to the restricted portion of his OMPF.  His nonjudicial punishment documents are already located in the restricted portion of his OMPF, thus no further consideration is necessary.

4.  In regard to the request that his DD Form 214 and his Discharge Certificate be changed to show his former rank of sergeant, regulatory policy requires the DD Form 214 to show the active duty grade or rank and pay grade at the time of separation.  His DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) amending his DD Form 214 accurately shows the applicant's correct rank at separation, thus no correction is warranted.

5.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20080018231



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ABCMR Record of Proceedings (cont)                                         AR20080018231



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