IN THE CASE OF:
BOARD DATE: 6 October 2009
DOCKET NUMBER: AR20090007418
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 appellant requests that a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be removed from the restricted portion of his Official Military Personnel File (OMPF).
2. The applicant states that he has served nine years and five months of unbroken commendable service to his country and the United States Army. He maintains that the Article 15 has served its intended purpose. The applicant further states that he believes his track record supports his exemplary service.
3. The applicant provides, in support of his application, numerous DA Forms 2166-8 (NCO (Noncommissioned Officer) Evaluation Reports [NCOERs]), Bronze Star Medal (BSM) certificate with narrative, five Army Commendation Medal certificates with DA Forms 638 (Recommendation for Award), Certificate of Graduation, and Champion Master Gunner certificate.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he enlisted in the Regular Army (RA) on
27 January 1995 and through a series of reenlistments, is still serving on active duty. On 1 October 2006, the applicant was promoted to the rank/grade of sergeant first class (SFC)/E7.
2. The applicant provided nine NCOERs from August 2001 through September 2008. These reports attest to the applicant's outstanding duty performance and
show that he was continuously rated as "Among the Best" by his raters in "Overall potential for promotion and/or service in positions of greater responsibility" and "Successful/Superior - 1" by his senior raters in "Overall performance/Overall potential," respectively.
3. The applicant's award certificates and DA Forms 638 confirm the applicant's dedication to duty and accomplishment of the mission.
4. On 2 December 1999, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties on 14 September 1999 by having sexual intercourse while being posted as Staff Duty; and wrongfully having sexual intercourse with a woman, not his wife. His punishment consisted of reduction to the rank/grade of specialist (SPC)/E-4, forfeiture of $742.00 per month for two months, and 45 days of extra duty. The Article 15 was directed to be filed in the performance portion of the applicant's OMPF.
5. On 1 September 2005, the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) to have the Article 15 transferred from the performance portion to the restricted portion of his OMPF. He cited his accomplishments and argued that the intended purpose had been served as justification for the transfer. On 23 September 2005, the DASEB approved the applicant's request stating that after a thorough evaluation of the applicant's entire record, the intended purpose of the Article 15 was served.
6. Army Regulation 600-37 (Unfavorable Information) states 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.
7. Army Regulation 600-37 also states that records of non-judicial punishment 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. The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.
DISCUSSION AND CONCLUSIONS:
1. The applicant provided numerous documents that attest to his outstanding duty performance since the issuance of the Article 15. It appears that the DASEB reviewed these same documents prior to transferring his Article 15 to the restricted portion of the applicant's OMPF on the basis of "intent served" which was in their purview to do so.
2. The applicant certainly has continued to excel as a Soldier as evidenced by his subsequent promotions, award of the Bronze Star Medal, and stellar NCOERs. However, removal of the UCMJ action from his restricted file, which may ultimately enable him to be appointed to the highest noncommissioned officer grade in the Army, may remove a perceived injustice for the applicant, but would certainly create an injustice for the Army by placing him on a level playing field with Soldiers whose service was not tainted by such misconduct or lapses in integrity.
3. In view of the foregoing, the Board concludes there is no error or injustice and as such concludes 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) AR20090007418
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ABCMR Record of Proceedings (cont) AR20090007418
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