IN THE CASE OF:
BOARD DATE: 23 February 2010
DOCKET NUMBER: AR20090012547
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 that a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 24 January 2007 be removed from his official military personnel file (OMPF). He also requests that his rank be restored to sergeant/E-5.
2. The applicant states that he was given an Article 15 for fraternizing with a private first class (PFC) on or about 15 June 2006. He contends that he was not at the command at the time he was alleged to have had relations with the PFC and that he was still at another command in another state over 400 miles away. He claims that he did not arrive at Fort Carson until 10 August 2006, that he did not get to the unit until 21 August 2006, and that the first time he ever saw the PFC was in September 2006. He also indicates that he told his command this and it did not seem to matter.
3. The applicant provides a copy of his Article 15 appeal, dated 30 January 2007; a sworn statement from his wife, dated 30 January 2007; bank statements; a Move Out Form, dated 4 August 2006; and three orders in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 15 February 1996 and trained as an avenger crewmember. He attained the rank of sergeant.
2. A DA Form 2627, dated 24 January 2007, shows that nonjudicial punishment was imposed against the applicant for disobeying a lawful order (to avoid contact with a PFC) on or about 15 September 2006, failing to obey a lawful general regulation (by compromising or appearing to compromise the integrity of the supervisory or authority chain of command by fraternizing with a PFC) on or about 15 September 2006, making a false official statement with the intent to deceive (that he was not having any improper relations with a PFC) on or about 11 September 2006, and having sexual intercourse with a PFC on or about
3 August 2006. His punishment consisted of a reduction to E-4, a forfeiture of pay, and extra duty. The issuing commander directed that the original DA Form 2627 be filed in the restricted section of the applicants OMPF. The applicant's appeal was denied on 7 February 2007.
3. On 16 August 2007, the applicant was honorably discharged in the rank of specialist four/E-4 by reason of physical disability with severance pay.
4. A review of the applicant's restricted section of his OMPF revealed a copy of the DA Form 2627 in question.
5. In support of his claim, the applicant provided a copy of his Article 15 appeal, dated 30 January 2007. In summary, he stated that all the evidence supporting the Article 15 finding was legally incompetent and would not have been admissible at a court-martial, that there were errors in the statements, that his witnesses were harassed, and that his Army career was over based on the Article 15 punishment which removed him from the E-6 list. He stated that at the last minute he decided not to go to a court-martial and he accepted the Article
15 so this whole ordeal could finally be over. He also pointed out his good duty performance.
6. The applicant also provided a sworn statement from his wife, dated
30 January 2007, wherein she states that the applicant was at Fort Riley, Kansas on 15 June 2006 and on 3 August 2006.
7. Army Regulation 600-8-104 (Military Personnel Information Management/
Records), currently in effect, prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Table 2-1 of the regulation provides, in pertinent part, that a DA Form 2627 will be filed in the performance or restricted section of the OMPF as directed by the issuing commander (item 5 on DA Form 2627). Allied documents accompanying the Article 15 will be filed in the restricted section.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant contends that he was given an Article 15 for fraternizing with a PFC on or about 15 June 2006, the DA Form 2627 shows he was charged with fraternizing with a PFC on or about 15 September 2006.
2. The applicant's remaining contentions relate to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial. However, the applicant accepted nonjudicial punishment in lieu of trial by
court-martial.
3. There is no evidence that the DA Form 2627 was improperly imposed. The DA Form 2627 imposed on 24 January 2007 was properly filed in the applicants OMPF. Based on the foregoing, there is no basis for granting the applicant's request that the DA Form 2627 be removed from his OMPF or that his rank be restored.
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) AR20090012547
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ABCMR Record of Proceedings (cont) AR20090012547
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