IN THE CASE OF:	

		BOARD DATE:	3 December 2009  

		DOCKET NUMBER:  AR20090017018 


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 removal of the DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)), dated 12 December 2001, from his official military personnel file (OMPF).

2.  The applicant states that the incident happened almost 8 years ago and he believes that it is still hindering his chances of being promoted.  He adds that he assumed full responsibility for his actions at the time, that the document has served its purpose, and that he has learned from the past.

3.  The applicant did not provide any additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army sergeant first class currently assigned to the 2nd Battalion, 262nd Field Artillery, Fort Bliss, TX.

2.  The applicant's records show he initially enlisted in the Regular Army for a period of 4 years on 5 July 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95C (Corrections Specialist).  He was also trained in and was awarded MOS 13B (Cannon Crewmember), executed several extensions and/or reenlistments, served in various staff and leadership positions, and attained the rank of staff sergeant (SSG)/E-6 on 27 March 1998.

3.  On 12 December 2001, while assigned as a recruiter to the U.S. Army Recruiting Battalion, San Antonio, TX, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ at a closed hearing for wrongfully taking a female and a male, members of the Delayed Entry Program (DEP), to see a movie on or about 10 August 2001 and for violating a general regulation by wrongfully having the female member of the DEP in his apartment on or about 13 August 2001.  His punishment consisted of a reduction to sergeant (SGT)/E-5 and a forfeiture of $500.00 pay per month for 2 months (suspended until 11 June 2002).  The imposing commander directed that this Article 15 be filed in the restricted section of the applicant's OMPF.

4.  On 13 December 2001, the applicant appealed his punishment to the next higher commander (brigade commander).  In his appeal, the applicant indicated that he was a new recruiter and that he took the DEP applicants to the movies to keep them motivated.  He added that he also took the DEP applicant to the Soldier show and that he had forgotten his cellular phone on that day.  He told the female applicant that he needed to pick up the phone.  She asked him if she could use his bathroom.  They then both left for the show.  As a new recruiter, he did not realize that the things he did were wrong and felt that the whole situation was a simple misunderstanding.

5.  On 10 January 2002, the brigade commander denied the applicant’s appeal.  The applicant acknowledged the action taken on his appeal on the same date.

6.  On 28 June 2005, the applicant again accepted NJP at a closed hearing for committing sodomy between on or about 21 March 2004 and 21 March 2005, wrongfully committing an indecent act with a female by allowing himself to be video-taped by a third party while having sexual intercourse with a woman not his wife between on or about 21 March 2004 and 21 March 2005, and wrongfully having sexual intercourse with a woman not his wife between on or about 21 March 2004 and 21 March 2005.  His punishment consisted of a forfeiture of $500.00 pay per month for 2 months (suspended until 25 December 2005).  The imposing commander directed this Article 15 be filed in the restricted section of his OMPF.  The applicant elected not to appeal the imposed punishment.

7.  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.

8.  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 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 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.

9.  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.

10.  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.

11.  Paragraph 7-2 of Army Regulation 600-37 contains guidance on appeals for removal of OMPF entries.  It states that 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.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation 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 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 12 December 2001, should be removed from his OMPF.

2.  The purpose of maintaining the OMPF is to protect the interests of the Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

3.  The evidence of record confirms that the applicant elected not to demand a trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing with his commander.  He had the opportunity to decline the Article 15 at any time prior to the imposition of punishment being announced and demand a trial by court-martial.  His election to accept the Article 15 was simply his choice.

4.  The evidence of record further shows that this DA Form 2627 is properly filed in the applicant's OMPF as directed by the imposing commander.  There is no evidence of record and he provides no evidence to show that the DA Form 2627 is untrue or unjust.  His argument that the Article 15 has served its intended purpose lacks merit.  If it had served its intended purpose, the applicant would not have placed himself in a situation where he received another Article 15.  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 is properly filed and should remain in the applicant's OMPF.

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)                                         AR20090017018



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ABCMR Record of Proceedings (cont)                                         AR20090017018



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