Search Decisions

Decision Text

ARMY | BCMR | CY2009 | 20090020300
Original file (20090020300.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090020300 


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 his record be corrected by removing documentation of two instances of punishment under Article 15, Uniform Code of Military Justice (UCMJ).   

2.  The applicant states the most recent Article 15 punishment was a summary Article 15 that should have been deleted after 1 year or completion of punishment served.

3.  The applicant provides the following:

* a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 21 October 1981
* a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 13 March 2003, with supporting documentation

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 October 1979 and was released from active duty with an honorable characterization of service on         27 October 1982.  He continued his service in the Army National Guard until his transfer to the United States Army Reserve Control Group (Retired Reserve) on 21 February 2009.

2.  The applicant's record includes a DA Form 2627, dated 21 October 1981, showing he accepted non-judicial punishment (NJP) for operating a motor vehicle without an operator's permit.  Part III (Attachments and/or Comments) shows the applicant's commander directed a copy of the DA Form 2627 be placed in his Official Military Personnel File (OMPF).  His punishment was forfeiture of $70.00 and 10 days of extra duty. 

3.  His NJP is currently filed in the performance portion of his OMPF.  The record is void of documentation showing he requested removal of this NJP prior to his transfer to the Retired Reserve.

4.  The applicant's record is void of documentation showing he accepted or was offered NJP on any other occasion. 

5.  Army Regulation 27-10 (Military Justice), effective 1 September 1980, states the decision whether to file the original DA Form 2627 in the OMPF will be determined at the time of imposition of punishment by the commander imposing the punishment.  This regulation further states the decision of the commander concerning the filing determination is final. 

6.  Army Regulation 600-37 (Unfavorable Information) states 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 also provides provisions that allow the transfer of a DA Form 2627 from the performance portion to the restricted portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected by removing documentation of two instances of NJP under Article 15, UCMJ, was carefully considered and not supported by the evidence in this case.

2.  The NJP the applicant accepted on 21 October 1981 was properly filed in accordance with the regulation in effect at the time.  The applicant's OMPF is void of any documentation pertaining to NJP received in 2003.  

3.  There is no evidence in the available records and the applicant has not submitted sufficient evidence to show that the NJP was erroneously filed in his OMPF or that the NJP was in error or unjust.  Absent such evidence, there is no basis to grant the relief requested.  

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)                                         AR20090020300





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020300



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2012 | 20120006578

    Original file (20120006578.txt) Auto-classification: Approved

    The applicant requests removal of a DA Form 2627 (Record of Proceedings Under Article 15 UCMJ) from his Official Military Personnel File (OMPF). Paragraph 3-18 of the military justice regulation contains guidance on notification and explanation of rights in connection with the imposition of NJP. By regulation, the Soldier is entitled to several rights in connection with the imposition of NJP which includes the right to a hearing and to appeal whatever punishment is imposed.

  • ARMY | BCMR | CY2008 | 20080001263

    Original file (20080001263.TXT) Auto-classification: Approved

    The applicant requests removal of a DA Form 2627 [Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)], dated 2 March 1981, from his Official Military Personnel File (OMPF). Paragraph 3-15c(3a) of regulation in effect at the time, states, in pertinent part, that in cases of persons serving on active duty in an enlisted status and having completed 3 years or less of active Federal military service at the time of the offense alleged, except for originals designated...

  • ARMY | BCMR | CY2012 | 20120009202

    Original file (20120009202.txt) Auto-classification: Approved

    The applicant requests, in effect, removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), he received on 22 December 1994, from the performance (P) portion of his official military personnel file (OMPF) or its transfer to the restricted (R) portion of his OMPF. Application for removal of an NJP from a Soldier's OMPF based on an error or injustice would be made to the ABCMR and there must be compelling evidence to support the removal of a...

  • ARMY | BCMR | CY2009 | 20090021275

    Original file (20090021275.txt) Auto-classification: Denied

    The applicant requests, in effect, reconsideration of an earlier request that a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 21 May 1999 be removed from his official military personnel file (OMPF). On 8 December 2009, the DASEB informed the applicant that the regulation precluded that board from removing records of nonjudicial punishment from an individual's OMPF and that the authority rested with the ABCMR. c. Paragraph 3-43 of...

  • ARMY | BCMR | CY2010 | 20100014864

    Original file (20100014864.txt) Auto-classification: Denied

    The applicant requests, in effect, that a falsely charged conviction, under Article 15 of the Uniform Code of Military Justice (UCMJ), be expunged from his Official Military Personnel File (OMPF) and from all records screened for security purposes. The letter from the paralegal of OSJA stated, in pertinent part, there was no record of a court-martial conviction on file for the applicant at Fort Bliss, TX for the offense of rape, Article 120 of the UCMJ. _______ _ _X______ ___ CHAIRPERSON I...

  • ARMY | BCMR | CY2011 | 20110016601

    Original file (20110016601.txt) Auto-classification: Approved

    The applicant requests that a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ), dated 3 January 1968, be removed from his Official Military Personnel File (OMPF). Army Regulation 672-5-1 (Decorations and Awards), in effect at the time, stated the AGCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for the first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for...

  • ARMY | BCMR | CY2015 | 20150007468

    Original file (20150007468.txt) Auto-classification: Denied

    The applicant requests the removal of a company grade Article 15 from his record. 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. It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.

  • ARMY | BCMR | CY2011 | 20110021956

    Original file (20110021956.txt) Auto-classification: Denied

    The applicant requests, in effect, removal of DA Forms 2627 (Record of Proceedings under Article 15 (Uniform Code of Military Justice (UCMJ)) dated 29 March 2000 and 4 March 2005 from his Official Military Personnel File (OMPF). To support the request, the person must submit substantive evidence that the intended purpose of UCMJ, Article 15 has been served and that transfer of the record is in the best interest of the Army. The DA Forms 2627 are filed in accordance with the applicable Army...

  • ARMY | BCMR | CY2012 | 20120008099

    Original file (20120008099.txt) Auto-classification: Denied

    The applicant requests, in effect, removal of a DA Form 2627 (Record of Proceedings Under Article 15 UCMJ) from his Official Military Personnel File (OMPF). Paragraph 3-37b(1)(a) of the military justice regulation states, in pertinent part, that the decision whether to file a record of nonjudicial punishment (NJP) in the performance section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed. It states applications for removal of an Article 15 from the...

  • ARMY | BCMR | CY2009 | 20090017341

    Original file (20090017341.txt) Auto-classification: Approved

    The Board noted that an Enlisted STAB denied the applicant's request to remove the DA QMP bar to reenlistment and that an Enlisted Special Review Board denied his request to remove the relief for cause NCOER. There is no evidence the applicant was issued a DD Form 215 to show he was retired from active duty in the rank of SSG/pay grade E-6 with an effective date of pay grade of 1 August 1993. A letter from the applicant to DFAS, dated 12 May 2009, in which he stated that he retired from...