BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20100007971 


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 16 May 2007, be moved from the performance section to the restricted section of his official military personnel file (OMPF).

2.  The applicant states this Article 15 is filed in both the performance and restricted sections of his OMPF.  It needs to be placed in his restricted section only.  He adds that paragraph 7-2b(1) of Army Regulation 600-37 (Unfavorable Information) states that unfavorable documents may be transferred if their intended purpose has been served and the transfer is in the best interests of the Army and Soldier.  He believes he served his punishment and hopes the Board would thoroughly review his case to transfer this document.

3.  The applicant provides the following documents:

* a copy of the DA Form 2627, dated 16 May 2007
* seven statements from fellow Soldiers, dated on various dates in 2007
* a self-authored statement, dated 26 November 2009
* a copy of his appeal memorandum, dated 17 May 2007
* a copy of his redress memorandum, dated 31 May 2007
* a copy of a DA Form 2823 (Sworn Statement), dated 9 May 2007


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 30 December 2003 and holds military occupational specialty 74D (Chemical Operations Specialist).  He served through multiple reenlistments and he was promoted to staff sergeant (SSG)/E-6 on 1 August 2005.  He is currently serving in Iraq with Task Force 61st Multifunctional Medical Battalion (MMB).

2.  On 16 May 2007 at a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for wrongfully compromising his supervisory role as a noncommissioned officer (NCO) by engaging in an inappropriate relationship with a subordinate female Soldier on or about 6 June 2006 and wrongfully having sexual intercourse with the subordinate female Soldier, a woman not his wife, on divers occasions between on or about 1 November 2006 through 21 January 2007.  His punishment consisted of a reduction to sergeant/E-5, a forfeiture of $1,227.00 pay for 2 months (suspended), and 45 days of extra duty and restriction.  His battalion commander directed the original DA Form 2627 be filed in the performance section of his OMPF.

3.  On 17 May 2007, he appealed his punishment.  He requested the imposing authority mitigate the charges, suspend the reduction, and have the Article 15 filed in the restricted section of his OMPF.  He also submitted several statements from fellow Soldiers who essentially described him as a good leader and recommended he retain his rank.  His appeal was reviewed by a military attorney who opined on 29 May 2007 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 30 May 2007, the appellate authority, the brigade commander, denied his appeal.

5.  On 14 June 2009, he petitioned the Department of the Army Suitability Evaluation Board (DASEB) to move the Article 15 from the performance to the restricted section of his OMPF.  On 17 September 2009, the DASEB denied his request.

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 self-authored statement, dated 26 November 2009, wherein he argues that this Article 15 changed his life.  He adds that he previously provided his commander all the evidence he could muster to prove his innocence and continues to fight for what he believes is an issue that would impact a promising future.  He believes he has served his punishment.

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

	a.  From January 2007 through January 2010, he received three NCO Evaluation Reports while serving with the 61st MMB at Fort Hood, TX.  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.

	b.  He was promoted to SSG/E-6 on 1 January 2008 and completed the Basic NCO Course on 19 March 2009.

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, 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 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.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF.  Chapter 2 of this regulation provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Table 2-1 (Composition of the OMPF) states that for Articles 15 issued on or after 1 November 1982, the document is filed in the performance or restricted section as directed by item 5 (Filing of Article 15) of the DA Form 2627.  Table 2-1 also states that allied documents accompanying Article 15s are filed on the restricted section of the OMPF.

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 compromising his NCO role by having sexual intercourse with a subordinate Soldier.  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.  The filing of this Article 15 in both the performance and restricted sections is not in error.  The filing in the performance section is proper because that's what the commander directed and the DASEB denied his request for transfer.  The filing in the restricted section is also proper because the governing regulation directs the filing of any allied papers in the restricted section of the OMPF.  Including the Article 15 with these documents serves to put them in context and, since access to the restricted section is very limited, promotion and assignment boards will not see them unless/until he is considered for appointment as a command sergeant major.  Hence, there is no real harm.

4.  He believes the presence of this Article 15 in the performance section of his OMPF will impact his career.  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 with a subordinate while holding the rank of SSG is evidence of a substantial breach of military discipline.

5.  The applicant 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.  In order to justify correction of a military record, the applicant must show 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)                                         AR20100007971



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)