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.
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