IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090013723 


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 DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) he received in December 1999 and March 2008 be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, while stationed in Korea in December 1999, he accompanied other Soldiers to the Post Exchange (PX) where he was erroneously charged with shoplifting and issued an Article 15.  This was an offense he did not commit.  He claims his unit was in the field, and he was attending a meeting on post.  His wife called him and complained of severe abdominal pain that prevented her from taking care of their daughter, who was 
2 years old at that time.  He admits that without informing anyone in his chain of command of the situation or of his whereabouts, he went to check on his wife, which resulted in this second Article 15.  He claims that after his unit returned from the field, his wife subsequently had an emergency hysterectomy to avoid dying.  He claims that if this same situation occurred again, he would do the same thing because he was right.  He indicates that it is his belief that these two Article 15 records are the cause of his last six non-selections for promotion to sergeant first class (SFC/E-7), and the Army needs to overlook these infractions to retain senior leaders, especially in cases where there are no recurring patterns of misconduct.



3.  The applicant finally states, in effect, that he has over 18 years of service, he is currently deployed in Iraq, and he has performed in several jobs above his grade level.  He states he has proven his competence and dedication to the Army and he believes these Articles 15 should be removed from his OMPF in order to allow him to be seriously considered for the next promotion that he has worked so hard for and deserves.

4.  The applicant provides the following documents in support of his application:  a DA Form 2627, dated 15 December 1999, with 14 pages of allied documents; a DA Form 2627, dated 30 May 2008, with 7 pages of allied documents; and a Department of the Army Suitability and Evaluation Board (DASEB) Packet that consists of 2 pages.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army and entered active duty on 4 October 1991.  At the time he applied to the Board, he was serving on active duty, in the rank of staff sergeant (SSG), with an expiration of term of service (ETS) date of 30 October 2011.

2.  On 10 December 1999, while serving as a SSG with the 61st Maintenance Company, in Korea, the applicant was notified that his commander was considering whether he should be punished under the provisions of the UCMJ for stealing Army Air Force Exchange Services or PX property valued at $129.00.  

3.  On 15 December 1999, the applicant elected not to demand a trial by 
court-martial and chose to have his case considered in an open hearing by his battalion commander.  He also elected to have a person to speak on his behalf and to submit matters in extenuation, mitigation, or defense at the Article 15 hearing. 

4.  The applicant's OMPF includes a DD Form 2823 (Sworn Statement), prepared by the applicant on 1 November 1999, in which he states that after gathering some needed items he realized he had not obtained a shopping basket upon entering the store.  He indicated that he placed those items in his black back-pack and when he noticed that the Soldiers who were with him had left the PX, he went out to look for them at which time he was detained and subsequently he was issued an Article 15.

5.  On 15 December 1999, the applicant's battalion commander, after considering the evidence presented at an open hearing, imposed the following punishment on the applicant:  reduction to sergeant/E-5 (SGT/E-5) and a forfeiture of $250.00 pay for two months.  
6.  The battalion commander directed the filing of this Article 15 in the performance (P) portion of the applicant's OMPF.  The applicant elected not to appeal the punishment and signed the DA Form 2627 confirming this election on 15 December 1999.

7.  On 1 March 2001, the applicant was promoted to the rank of SSG/E6.

8.  On 15 November 2007, the applicant petitioned the DASEB requesting that the 15 December 1999 DA Form 2627 be transferred from the P portion to the restricted (R) portion of his OMPF.  

9.  On 19 December 2007, the Director of the DASEB published a memorandum informing the applicant that the DASEB voted to approve the transfer of the 15 December 1999 DA Form 2627 to the R portion of his OMPF because it had served its intended purpose.  The applicant's request for transfer of the 
15 December 1999 Article 15, the DASEB decision, and the DA Form 2627 in question are filed in the R portion of his OMPF.

10.  On 30 May 2008, while serving as a SSG with Headquarters and Headquarters Company, 82nd Brigade Support Battalion, Fort Bragg, 
North Carolina, the applicant was notified that his unit commander was considering whether he should be punished under the UCMJ and issued an Article 15 for being derelict in the performance of his duties by negligently failing to inform his chain of command of his whereabouts on 20 April 2008.

11.  On 30 May 2008, the applicant elected not to demand a trial by court-martial and chose to have the matter handled by his unit commander at a closed hearing.  He did not elect to request a person to speak on his behalf and he did not submit matters in extenuation, mitigation, or defense.  The unit commander, after considering all matters presented in a closed hearing, imposed the following punishment:  a forfeiture of $372.00 pay for 1 month (suspended if not vacated by 25 November 2008), 14 days of extra duty, and an oral reprimand.  (This Article 15 is presumed to be the one the applicant refers to as receiving in March 2008 in his application).  

12.  The applicant's unit commander directed the filing of the 30 May 2008 Article 15 in the R portion of the applicant's OMPF.  The applicant elected not to appeal the punishment and signed the DA Form 2627 confirming this election on 30 May 2008.  


13.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Paragraph 
3-37b(2) states, in pertinent part, that for Soldiers in the ranks of SGT and above, the original Article 15 record will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the P or R portion of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final; however, the filing decision is subject to review by any superior authority.  However, the superior authority cannot direct that an Article 15 will be filed in the P section if the imposing commander directed it be filed in the R section of the OMPF.

14.  Army Regulation 27-10, chapter 3, implements and amplifies Article 15, UCMJ, and Part V of the Manual for Courts-Martial (MCM).  Paragraph 3-43 contains guidance on the transfer or removal of the DA Form 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 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.

15.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF.  It 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 applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF.  It further stipulates that appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the Article 15 records he received on 15 December 1999 and 30 May 2008 should be removed from his OMPF to allow him serious consideration for promotion to SFC was carefully considered.  However, there is insufficient evidence to support this claim.  


2.  The evidence of record confirms the applicant was promoted to SSG a second time on 1 March 2001, since the imposition of his initial 15 December 1999 Article 15 and its filing in the P portion of his OMPF.  This confirms that the filing of this Article 15, while included in the P portion of his OMPF, did not impact his ability to be promoted at that time.  

3.  Further, both DA Forms 2627 are now filed in the R portion of his OMPF, which is not reviewed by SFC promotion boards.  As a result, while the original 15 December 1999 Article 15 could have impacted his non-selection prior to it being transferred to the R portion of the OMPF by the DASEB in 2007, neither Article 15 can now be a factor in his promotion consideration for SFC.  

4.  The filing of these Article 15s in the R portion of the applicant's OMPF ensures that they will not be reviewed by centralized senior NCO promotion boards in the future unless he becomes eligible for consideration for sergeant major (SGM).  As a result, there is no indication that the Article 15s in question will impact his promotion potential in the future.

5.  By regulation, in order for the ABCMR to recommend removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record, there must be clear and compelling evidence of an error or injustice.  In this case, the evidence of record confirms the applicant's guilt of the offenses that led to his receipt of the Article 15s in question, as evidenced by his Sworn Statement on file and in his statement included on the DD Form 149 submitted for consideration of this case. In these documents, he admits he left the PX without paying for the items in question on 1 November 1999, and that he did not inform his chain of command of his whereabouts when he left his official place of without the proper authority on 20 April 2008.  These infractions clearly supported the actions taken on 
15 December 1999 and 30 May 2008, respectively.  Therefore, removal of these Article 15s from the R portion of the applicant's OMPF is not warranted.  

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)                                         AR20090013723



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)