IN THE CASE OF:	

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20100009468 


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, in effect, that a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated
16 December 2005, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states the following:

   a.  It has been 4 years since he received the Article 15 and he has been punished long enough; and

   b.  The burden of the record of non-judicial punishment (NJP) has served its intended purpose.

3.  The applicant provides no evidentiary documents in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military record shows he initially enlisted in the Regular Army and entered active duty on 3 October 2002.  He was trained in and awarded military occupational specialty (MOS) 77W (Water Treatment Specialist).

2.  The applicant is currently serving on active duty with the 426th Combat Support Battalion, Fort Campbell, Kentucky, in the rank of sergeant (SGT), with an expected expiration term of service (ETS) date of 17 October 2014.

3.  The applicant’s OMPF contains a DA Form 2627 that shows the following:
   a.  He accepted NJP on 23 November 2005, while serving in the rank of sergeant (SGT), for committing an indecent assault upon a female specialist (SPC), a person not his wife, by sliding his hand up her shirt and shorts with the intent to gratify his own sexual desires on 10 October 2005;

   b.  He elected not to demand a trial by court-martial, and instead he chose for the matter to be handled by his company commander in a closed hearing;

   c.  He elected to appeal the NJP action, someone to speak on his behalf, and to submit matters in extenuation, mitigation, or defense at the NJP hearing;

   d.  Subsequent to the hearing, the punishment imposed consisted of a reduction to specialist (SPC), a forfeiture of $500.00 pay for 2 months (suspended if not remitted by 1 June 2006), and 45 days of extra duty and restriction.

   e.  The commander directed the DA Form 2627 be filed in the performance section of the applicant's OMPF;

   f.  The applicant appealed the punishment and his appeal was reviewed by a Judge Advocate General attorney, who opined that the proceedings were conducted in accordance with law and regulation, and the punishment imposed was not unjust or disproportionate for the offense committed.

   g.  On 16 December 2005, the appellate authority, the 3rd Armored Cavalry Regiment commander, denied the applicant's appeal.

4.  The applicant was promoted to sergeant for a second time on 1 February 2008.

5.  A review of the applicant's OMPF reveals the DA Form 2627 in question is in fact filed in the performance section of his OMPF along with the sworn statement written by the Soldier subjected to the assault.

6.  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 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there is an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

7.  Paragraph 3-37b(1)(a) of the military justice regulation states, in pertinent part, that 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.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

8.  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.  

9.  Army Regulation 600-37, chapter 7 contains guidance on appeals 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. 

10.  Army Regulation 600-37, paragraph 7-2c contains guidance on petitions for transfer of Articles 15 and states, in pertinent part, that 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.  Transfer requests should be 
submitted to the Department of the Army Suitability Evaluation Board (DASEB).  The authority to adjudicate requests for removal of a DA Form 2627 from the OMPF rests with the DASEB, which reviews requests to transfer Article 15s for Soldiers in grades E-6 and above.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DA Form 2627 in question should be removed from his OMPF because it has served its intended purpose was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the basis for any set aside action must show "clear injustice" which means an unwaived legal or factual error clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

3.  The evidence of record confirms the applicant's Article 15 processing was accomplished in accordance with the applicable law and regulation, and that the imposing commander determined beyond a reasonable doubt that the applicant was guilty of the charged offense.  There is no evidence of record or independent evidence provided by the applicant that would call into question the validity of this decision of the imposing commander.  Further, the applicant's appeal of the Article 15 punishment was properly considered through the appellate process and his appeal was denied by the appropriate appellate authority.  Therefore, absent any clear and convincing new evidence of a clear injustice, there is an insufficient evidentiary basis to support a set aside of the NJP action in question.

4.  The governing regulation also requires that in order for the ABCMR to support removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record, there must be clear and compelling evidence of clear injustice and/or evidence that shows the document is untrue or unjust, in whole or in part.  There is no evidence of record or independent evidence provided by the applicant that satisfies this regulatory burden of proof.  Therefore, there is also an insufficient evidentiary basis to support removal of the Article 15 from the applicant's OMPF. 

5.  The filing decision by the Article 15 imposing commander was to file the 
DA Form 2627 in question in the performance section of the OMPF.  The applicant is advised that although there is an insufficient evidentiary basis to support removal of the DA Form 2627 from his OMPF, he retains the option to request the Article 15 be transferred from the performance section to the restricted section of his OMPF.  This request should be submitted to the DASEB in accordance with the provisions outlined in Army Regulation 600-37.  However, the DASEB will not routinely consider the request from a Soldier below the grade of E-6.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

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)                                         AR20100009468



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ABCMR Record of Proceedings (cont)                                         AR20100009468



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