IN THE CASE OF:	  

		BOARD DATE:	  14 July 2009

		DOCKET NUMBER:  AR20090008512 


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 his DA Form 2627 (Record of Proceeding under Article 15, Uniform Code of Military Justice (UCMJ)), dated 
26 April 2006, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he was never charged with anything during the Article 15 proceedings and feels that he has served his punishment.  He claims he has not held his head down as a result of the punishment nor has he stopped leading, training, and mentoring Soldiers.  He states that he has continued to work in senior positions and thinks he has shown he has the resiliency necessary to be a Soldier and leader.  

3.  The applicant provides the DA Form 2627 in question, a U.S. Army Human Resources Command (HRC) memorandum, counseling forms (DA Forms 4856), U. S. Army Criminal Investigation Command (USACIDC) investigation reports (CID Form 94) and associated documents, and various medical treatment records and reports in support of his application. 
	
CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a staff sergeant (SSG) at Fort Sill, Oklahoma.  


2.  On 26 April 2006, while he was serving as a SSG at Fort Stewart, Georgia, the applicant was notified that his unit commander was considering whether he should be punished under Article 15 of the UCMJ for unlawfully striking a child under the age of 16 years on the left arm, legs, back and buttocks with a belt.  

3.  On 29 April 2006, the applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by his unit commander at a closed hearing.  

4.  On 2 May 2006, the applicant’s battalion commander, after having considered all matters presented in defense, mitigation, and/or extenuation at a closed hearing, imposed the following punishment on the applicant:  reduction to sergeant (SGT) and a forfeiture of $1,209.00 per month for two months.  The company commander also directed the DA Form 2627 be filed in the restricted portion of the applicant's OMPF.  The applicant elected to appeal the NJP and to submit additional matters.

5.  On 10 May 2006, a Judge Advocate General (JAG) attorney considered the applicant’s appeal and concluded that the Article 15 proceedings were conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the offense.  

6.  On 11 May 2006, the appellate authority, after consideration of all matters presented, denied the applicant's appeal.

7.  An HRC memorandum, dated 12 July 2006, informed the applicant that he had been considered and selected for promotion to sergeant first class (SFC); however, based on his field reduction by Article 15 his name was administratively removed from the list.  

8. On 1 December 2006, the applicant was promoted back to SSG.

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.  Paragraph 7-2 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.  The regulation provides provisions that allow the transfer of a DA Form 2627 from the performance (P) portion of the OMPF to the R portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.

11.  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 NJP on the P-portion of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  

12.  Paragraph 3-18 of the military justice regulation contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15. It further stipulates that Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, request to be accompanied by a spokesperson, an open hearing and to examine available evidence. 

13.  Paragraph 3-28 of the military justice regulation 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 
that there exists 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. 


14.  Paragraph 3-28 further states that clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  It further states that normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

15.  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 on the P or R portion 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.

16.  Paragraph 3-43 of the military justice regulation contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states, in pertinent part, that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he has served his punishment and therefore the Article 15 should be removed from his OMPF was carefully considered.  However, by regulation, there must be clear and compelling evidence that the document is untrue or unjust to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.  Absent any evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removing the document in question from the applicant’s OMPF.

2.  The evidence of record confirms the applicant was notified of the commander’s intent to handle the offense in question under the provisions of Article 15.  After being afforded the opportunity to consult with legal counsel, he elected not to demand a trial by court-martial and elected to have his case disposed of through Article 15 proceedings at a closed hearing with his commander.  

3.  The record also shows that the applicant was aware he had the right to fully present his case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to an open hearing, and to examine available evidence at the time he made these elections.  
4.  In view of the evidence of record, it is clear the Article 15 proceedings, to include the appellate process, was conducted in accordance with the governing law and regulation, and that the ultimate punishment imposed was not unjust or disproportionate to the offense committed.  The applicant has failed to satisfy the clear and compelling evidence regulatory standard that would support setting aside the Article 15 or the removal of the DA Form 2627 from his OMPF.  

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)                                         AR20090008512



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ABCMR Record of Proceedings (cont)                                         AR20090008512


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