BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090009811 


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 the DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ) dated 9 February 2001 be declared void and expunged from his records.

2.  The applicant states that this matter was dismissed by order of Brigadier General (BG) Bxxxx, the III Armored Corps Artillery (ACA) Commander.  He adds that he was misinformed by his command as to the ultimate resolution of this matter as he had been given a copy of the Article 15 indicating dismissal.  He also states that he is making this request because he was told specifically by BG Bxxxx that the Article 15 was dismissed and that this unprofessional conduct has clearly created an injustice.

3.  The applicant provides a copy of his DA Form 2627, dated 9 February 2001, and a copy of his elimination approval memorandum, dated 8 May 2001, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame 
provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) with concurrent call to active duty and he executed a DA Form 71 (Oath of Office - Military Personnel) on 17 August 1998.  He subsequently completed the Field Artillery Officer Basic Course and he was assigned to the 2nd Battalion, 4th Field Artillery, Fort Sill, OK.  He was promoted to first lieutenant on 20 April 2000.

3.  On 27 November 2000, at a closed hearing, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for twice failing to go at the time prescribed to his appointed place of duty on or about 18 and 19 October 2000.  His punishment consisted of a forfeiture of $1,000.00 pay per month for 2 months with all forfeiture in excess of $500.00 per month for 2 months suspended until 1 June 2001.  The imposing commander directed this Article 15 be filed in the performance portion of the applicant's Official Military Personnel File (OMPF).  Furthermore, the applicant elected not to appeal his punishment.

4.  On 9 February 2001, the suspension of the punishment of forfeiture of $500.00 pay per month for 2 months was vacated and the unexecuted portion of the punishment ordered executed by reason of the applicant stealing one pair of bowling shoes of a value of $36.00 on or about 2 December 2000; stealing merchandise and/or services of a value of $43.20 on or about 2 December 2000; attempting to solicit a relationship with an underage female which conduct was unbecoming of an officer and gentleman on or about 2 December 2000; and fraternizing with an enlisted Soldier thus creating an actual or clearly predictable adverse impact on discipline, authority, morale, or ability of the command to accomplish its mission on or about 2 December 2000.

5.  On 9 February 2001, at a closed hearing, the applicant accepted NJP under Article 15 of the UCMJ for stealing one pair of bowling shoes of a value of $36.00 on or about 2 December 2000; stealing merchandise and/or services of a value of $43.20 on or about 2 December 2000; attempting to solicit a relationship with an underage female which conduct unbecoming of an officer and gentleman on or about 2 December 2000; and fraternizing with an enlisted Soldier thus creating an actual or clearly predictable adverse impact on discipline, authority, morale, or ability of the command to accomplish its mission on or about 2 December 2000.  
His punishment consisted of a forfeiture of $1,300.00 pay per month for 2 months and 30 days of restriction.  The imposing commander directed this Article 15 be filed in the performance section of the applicant's OMPF.  The applicant elected not to appeal the imposed punishment.  It is noted that the imposing commander lined through the first offense of stealing one pair of bowling shoes of a value of $36.00 on or about 2 December 2000 and hand-wrote the entry "dismissed by BG Bxxxx."

6.  On 15 February 2001, the Commanding General, U.S. Army Field Artillery Center, Fort Sill, initiated elimination action against the applicant by reason of personal misconduct and conduct unbecoming an officer.

7.  On 8 May 2001, the Deputy Assistant Secretary of the Army (Review Boards) approved the applicant's elimination from the Army with a general, under honorable conditions discharge.

8.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides, in pertinent part, that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

9.  Paragraph 3-6 of Army Regulation 27-10 addresses the filing of an NJP and provides, in pertinent part, that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are 
compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant 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 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.

10.  Paragraph 3-18 of Army Regulation 27-10 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 the 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, and 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, to request to be accompanied by a spokesperson, to request an open hearing, and to examine available evidence.

11.  Paragraph 3-43 of Army Regulation 27-10 contains guidance on the transfer or removal of DA Forms 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 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.

12.  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; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and 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. 

13.  Paragraph 7-2 of Army Regulation 600-37 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 portion to the restricted section of the OMPF.  

14.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 and Table
2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed in Item 5 of the DA Form 2627.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 9 February 2001, should be removed from his records.

2.  The evidence of record shows that the applicant received an Article 15 on 27 November 2000 for twice failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $1,000.00 pay per month for 2 months with the forfeiture of $500.00 per month for 2 months, suspended until 1 June 2000.  The imposing commander directed this Article 15 be filed in the performance portion of the applicant's OMPF.  Furthermore, the applicant elected not to appeal his punishment.

3.  The evidence of record further shows that the applicant committed several offenses on 2 December 2000 that led to the suspension of the punishment of forfeiture of $500.00 pay per month for 2 months being vacated and the unexecuted portion of the punishment to be executed by reason of the applicant’s misconduct. 

4.  The evidence of record further shows the applicant received a second Article 15 for his various acts of misconduct committed on 2 December 2000.  It appears that the applicant misunderstood the imposing commander’s intent and assumed that all the charges were dismissed.  That was not the case.  The imposing commander dismissed the one charge of larceny of bowling shoes by lining through the charge on the Article 15.  However, he did not dismiss the other charges of larceny of merchandise and/or services, conduct unbecoming of an officer, and fraternization with an enlisted Soldier.  The imposing commander further directed this Article 15 be filed in the performance section of the applicant's OMPF.  The applicant elected not to appeal the imposed punishment. 
5.  The evidence of record shows that the DA Form 2627, dated 9 February 2001, is properly filed in the applicant's OMPF as directed by the imposing commander. There is no evidence of record and the applicant provides no evidence to show that the DA Form 2627 is untrue or unjust or that the imposing commander ordered all charges dismissed.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust.  Therefore, the DA Form 2627 and allied documents are properly filed and should remain in the applicant's OMPF.

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)                                         AR20090009811



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ABCMR Record of Proceedings (cont)                                         AR20090009811



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