BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090016544 


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, transfer of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from the performance portion to the restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states that he understands the Article 15 was placed in the performance portion due to the recommendation of his battalion commander at the time.  He states he believes it was unjust because of the overwhelming effects it is having on his attempts to further his military career.

3.  The applicant provides his Department of the Army Suitability Board (DASEB) appeal packet which includes:

   a.  an undated written statement to the President and members of the DASEB.

   b.  five Letters of Recommendation addressed to the President, DASEB. 

   c.  a copy of the DA Form 2627 dated 25 July 2006.






   d.  copies of his Noncommissioned Officer Evaluation Reports (NCOERs) for the following periods:

   (1)  11 December 2008 through 6 June 2009.

   (2)  11 December 2007 through 10 December 2008.

   (3)  2 July through 10 December 2007.

   (4)  2 July 2006 through 1 July 2007.

CONSIDERATION OF EVIDENCE:

1.  On 22 November 1995, the applicant enlisted in the Regular Army for 3 years, in the pay grade of E-1.  He is currently on active duty and has been promoted through the ranks to staff sergeant/E-6.

2.  On 20 June 2006, the applicant was counseled as a result of being accused of raping a female Soldier.  He was advised:

   a.  the situation was being investigated and that even if the sex was consensual, it was still an act of adultery for him and the other Soldier.

   b.  acts of misconduct would not be tolerated, if he was found guilty, the maximum punishment under the UCMJ would be recommended.

   c.  he was not to speak, call, write, or contact the female Soldier until the investigation was concluded.

   d.  he would be flagged until the investigation was concluded and he would not have a permanent change of station.

   e.  of the effects of a discharge under the provisions of Army Regulation 635-200, chapters 8, 5-13, 5-18, 11, 13, and 14.

3.  On 25 July 2006, the applicant was given an Article 15 for wrongfully having sexual intercourse with a woman not his wife.  On the DA Form 2627, the applicant elected a closed hearing and not to demand trial by court-martial.  He also elected to present matters in his own defense.  After considering all matters in his defense, his commander directed that the Article 15 be filed on the performance portion of his OMPF.  The applicant was advised of his right to appeal the decision and he elected not to do so.  His punishment consisted of:

   a.  reduction to pay grade E-5.

   b.  a forfeiture of $1,248.00, suspended and to be automatically remitted if vacated before 24 August 2006.

   c.  extra duty for 45 days.

   d.  restriction for 45 days, suspended and to be automatically remitted if not vacated before 20 January 2007.

4.  The applicant submitted an appeal to the DASEB requesting the transfer of the Article 15 from the performance portion to the restricted portion of his OMPF. On 11 June 2009, the DASEB denied his appeal, citing the need for more evidence of a compelling nature to show the Article 15 had served its intended purpose or that it was in the best interest of the Army to transfer it at the time.

5.  In the statement he submitted to the President and members of the DASEB, he acknowledges he could not justify his actions in the event that led to the Article 15 and he knew he was wrong.  He stated his actions shamed his unit, the NCO corps, the Army and himself, and he apologized for the decisions that he made.  He stated the experience crafted him into a better leader.

6.  The letters of recommendation that he submits are from his present and former supervisors all attesting to his good character, performance, leadership, maturity and reliability.  The NCOERs show he was rated as successful during the periods covered by the NCOERs.

7.  A review of the available records show the Article 15 is currently filed in the performance and restricted portions of his OMPF.

8.  His records also show he was promoted to pay grade E-6 again on 
1 November 2007.

9.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment if punishment is appropriate.

10.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were considered. 

2.  His good character, performance, leadership, maturity and reliability were also considered along with the ratings he received on the NCOERs he submitted.  

3.  However, the evidence is insufficient to show he was erroneously issued the Article 15, that it is inappropriately filed in his OMPF, or that the punishment imposed against him was improper.  Also he has submitted insufficient evidence to show the Article 15 he received has served its intended purpose.

4.  His records show that he regained his E-6 pay grade on 1 November 2007 and he has provided no evidence that shows the Article 15 has had any adverse effects on his career.  The Article 15 was filed in his OMPF as directed by the appropriate authority and in accordance with the applicable regulation.  There is no basis for transferring to Article 15 from the performance portion to the restricted portion of his OMPF at this time.

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)                                         AR20090016544



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ABCMR Record of Proceedings (cont)                                         AR20090016544



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