IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090006682 


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 the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, he believes the Article 15 in question should be removed because the offense was an honest mistake.  He claims he had orders to go to Korea and his orders were cancelled during travel, at which time he returned to Fort Sill, OK.  Upon his return, he made the mistake of entering the wrong dates for leave.  He states that when he realized the mistake, he went back to correct the dates and when finance sent the paperwork to his unit, his commander took it the wrong way.  He claims to teach his Soldiers that it is not important how you fall, but what you do after you get up.  He indicates that since his mistake, he was placed in a convoy commanders positions controlling his platoon and over 100 third-country nationals, which was key to his unit transforming from a transportation company to a field artillery battery, and he has been selected to serve as the noncommissioned officer in charge (NCOIC) of the salute battery in Korea.  He indicates he just wants to advance his career.  He further indicates that he has attempted to correct this matter through Judge Advocate General (JAG) channels for the past three years, and he just learned of this avenue to seek relief.  He states that right after receiving the Article 15 he went to Iraq and shortly after his return, he was sent to Korea.  He indicates he has made every effort to remove the Article 15 from his file and while he was waiting, he tried to rebuild his reputation and show that the action was a mistake and that he has bounced back and he is moving forward.
3.  The applicant provides no additional documentary evidence in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he initially enlisted in the Regular Army (RA) and entered active duty on 1 September 1998, and he has continuously served in that status through the present.

2.  The applicant’s record shows he was promoted to staff sergeant (SSG) on 
1 December 2006, and he is currently serving in that grade at Fort Sill.

3.  On 22 August 2005, while the applicant was serving as an SSG at Fort Sill, he was notified that his battalion commander was considering whether he should be punished under Article 15 of the UCMJ for making a false official statement with the intent to deceive.

4.  On 1 September 2005, 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 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 in person.  Subsequent to the hearing, the applicant’s battalion commander imposed the following punishment on the applicant:  reduction to sergeant (SGT), forfeiture of $1,030.00 per month for two months (so much of the forfeiture in excess of $1,030.00 was suspended), 45 days of extra duty, and 45 days of restriction (suspended).  The battalion commander directed the original DA Form 2627 be filed in the performance section of the OMPF.  The applicant appealed the punishment and his appeal was reviewed by a JAG attorney, who opined that the proceedings were conducted in accordance with law and regulation, and the punishments imposed were not unjust or disproportionate to the offense.   

5.  On 28 September 2005, the appellate authority, the brigade commander, denied the applicant's appeal.  

6.  A review of the applicant's OMPF reveals that the DA Form 2627 in question is in fact filed in the performance section of his OMPF and that it is also filed in the restricted section of his OMPF along with a complete packet of documents considered by the imposing commander and the appellate authority.

7.  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 3-18(1) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there is an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

8.  Paragraph 3-37b(1)(a) of the military justice regulation states, in pertinent part, that the decision whether to file a record of non-judicial punishment (NJP) in the performance section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP 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 Soldier’s record by the ABCMR.

9.  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.  

10.  Chapter 7 of Army Regulation 600-37 contains guidance on appeals and petitions for removal of unfavorable information from official personnel files and 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. 

11.  Paragraph 7-2c of Army Regulation 600-37 contains guidance on petitions for transfer of Articles 15 and states, in pertinent part, that records of NJP may be transferred upon proof that their intended purpose has been served, or that their transfer would be in the best interest of the Army.  Transfer requests should be 
submitted to the Department of the Army Suitability Evaluation Board (DASEB).  The authority to adjudicate requests for removal of a DA Form 2627 from the OMPF rests with this Board.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DA Form 2627 in question should be removed from his OMPF because it was unjust and it was the result of a mistake and not misconduct was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there is an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

3.  The evidence of record confirms the applicant's Article 15 processing was accomplished in accordance with the applicable law and regulation, and that the imposing commander determined beyond a reasonable doubt that the applicant was guilty of the charged offense.  The is no evidence of record or independent evidence provided by the applicant that would call into question the validity of this decision of the imposing commander.  Further, the applicant's appeal of the Article 15 punishment was properly considered through the appellate process and his appeal was denied by the appropriate appellate authority.  Therefore, absent any clear and convincing new evidence of a clear injustice, there is an insufficient evidentiary basis to support a set aside of the NJP action in question.

4.  The governing regulation also requires that 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 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.  Therefore, there is also an insufficient evidentiary basis to support removal of the Article 15 from the applicant's OMPF. 

5.  The filing decision by the Article 15 imposing commander was to file the DA Form 2627 in question in the performance section of the OMPF; however, a copy of the DA Form 2627 remains filed in both the performance and restricted sections of the OMPF.  The applicant is advised that although there is an insufficient evidentiary basis to support removal of the DA Form 2627 from his OMPF, he retains the option to request the Article 15 be transferred from the 

performance to the restricted section of his OMPF based on the purpose of the document being served, or that it is in the best interest of the Army.  This request should be submitted to the DASEB in accordance with the provisions outlined in Army Regulation 600-37.  

6.  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)                                         AR20090006682



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ABCMR Record of Proceedings (cont)                                         AR20090006682


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