BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090017850 


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, Uniform Code of Military Justice (UCMJ), dated 1 September 2005, be moved from the performance section to the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states that he is eligible for promotion consideration to sergeant first class and is submitting an application packet for the warrant officer program.

3.  The applicant provides a statement, dated 20 August 2009, from his former battalion command sergeant major (CSM), in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 1 September 1998 and served through multiple extensions or reenlistments.  He was promoted to staff sergeant (SSG)/E-6 on 1 December 2006 and is currently assigned to Fort Sill, OK.

2.  On 22 August 2005, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from on or about 1 July 2005 through 1 August 2005 and making a false statement on 1 August 2005.  His punishment consisted of a reduction to sergeant/E-5, a forfeiture of $1,030.00 pay for 2 months (the amount in excess of $1,030.00 was suspended), 45 days of extra duty, and 45 days of restriction (suspended).  His battalion commander directed the original DA Form 2627 be filed in the performance section of his OMPF. 

3.  On 1 September 2005, he appealed his punishment.  His appeal was reviewed by a military attorney, who opined that the proceedings were conducted in accordance with law and regulation, and the punishment imposed was not unjust or disproportionate to the offenses.   

4.  On 28 September 2005, the appellate authority, the brigade commander, denied his appeal.  

5.  On 1 December 2006, he was promoted to SSG/E-6.

6.  A review of his OMPF reveals that the DA Form 2627 in question is in fact filed in the performance section of his OMPF as directed by his battalion commander.  It is also filed in the restricted section of his OMPF along with a complete packet of documents considered by the imposing commander and the appellate authority.

7.  He submitted a statement dated 20 August 2009 from his former CSM who states that prior to the infraction the applicant had been a good Soldier and continues to be a good Soldier.  He made a mistake and was punished for it; however, he should not have to be punished any further. 

8.  A review of his personnel records since his incident reveals the following:

	a.  From November 2005 through August 2009, he was awarded 3 awards of the Army Commendation Medal for meritorious service with various units.

	b.  From November 2005 through August 2009, he received 5 Noncommissioned Officer Evaluation Reports while serving with various units.  His raters mainly rated him either fully capable or among the best.  His senior raters rated his overall performance as successful and his potential as superior. 

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM [Manual for Courts-Martial].  Paragraph 3-18(1) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  Paragraph 3-37b(1)(a) states the decision whether to file a record of NJP in the performance section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  

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; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to 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.  Chapter 7 of Army Regulation 600-37 contains guidance on appeals for transfer and petitions for removal of unfavorable information from official personnel files and 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 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.  Records of NJP may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that those conditions have been met. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627 in question should be moved from the performance section to the restricted section of his OMPF.

2.  The evidence of record shows he violated the UCMJ and subsequently accepted NJP for being AWOL.  The imposing commander directed this Article 15 be filed in the performance section of his OMPF.  He appealed his punishment but his appeal was denied.  His NJP proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust. There is neither an error nor an injustice.

3.  He now believes the presence of this Article 15 in the performance section of his OMPF will impact his chances for promotion and the warrant officer program. However, when an NJP action reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline, the interests of the Army are compelling and in such cases, the record should be filed in the performance section.  The fact that he engaged in inappropriate conduct (AWOL), and made a false statement while holding the rank of SSG, is evidence of a serious character deficiency and a substantial breach of military discipline.

4.  The applicant has failed to demonstrate the NJP action has served its intended purpose or that a transfer of the NJP would be in the best interest of the Army.

5.  In view of the foregoing evidence, there is no evidence of error or injustice.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief in this case.  

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)                                         AR20090017850



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ABCMR Record of Proceedings (cont)                                         AR20090017850



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