IN THE CASE OF:	

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20100011828 


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 removal of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]) from his Official Military Personnel File (OMPF).

2.  The applicant states the results of his Show Cause Board were approved on 7 January 2010.

3.  The applicant provides the Show Cause Board results in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he initially enlisted in the Regular Army on
6 November 1992.  He continuously served until being honorably discharged, in the rank/grade of sergeant (SGT)/E-5, to accept an appointment as a warrant officer.

2.  On 22 July 1997, the applicant was appointed a Reserve warrant officer of the Army in the rank of warrant officer one (WO1).  He was last promoted to the rank of chief warrant officer three (CW3) on 1 July 2005.

3.  On 22 September 2008, while serving as a CW3 with Company D, Assault Helicopter Battery, Fort Hood, TX, the applicant was notified that his commander 
was considering whether he should be punished under Article 15, UCMJ, for the wrongful use of cocaine, a controlled substance.
4.  On 29 September 2008, the applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by his battalion commander at a closed hearing and to present matters in defense, mitigation, and/or extenuation.

5.  On 29 September 2008, the applicant’s commander imposed non-judicial punishment (NJP) in the form of a written reprimand.  The applicant elected not to appeal the punishment and signed the DA Form 2627 confirming this election on 29 September 2008.

6.  The applicant provides a Headquarters, III Corps, Fort Hood memorandum, dated 7 January 2010.  It contains the approved findings and recommendation of a Show Cause Board on the applicant and it shows he was retained on active duty and he received a rehabilitative reassignment.

7.  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 3-43 of the military justice regulation contains guidance on the transfer or removal of records of non-judicial punishment 
(DA Form 2627) 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.  Chapter 7 of the unfavorable information regulation contains guidance on appeals and petitions for removal of unfavorable information from official personnel files.  It 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. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to remove the DA Form 2627 in question from his military record based on the findings he received from the Show Cause Board was carefully considered.  While the applicant’s misconduct that led to the issuance of the DA Form 2627 may have also established the basis for the Show Cause Board action taken against him, the results thereof whether favorable or not, have no bearing on the commander’s decision to file the DA Form 2627 in question in the performance portion of his OMPF.

2.  The evidence of record confirms the disposition and filing of the record of NJP he accepted on 29 September 2008 was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the NJP process.

3.  The evidence of record confirms that after being properly notified that his commander was considering whether he should be punished under Article 15, the applicant elected not to demand a trial by court-martial and to submit matters in defense, mitigation, and/or extenuation.  The applicant also elected not to appeal the punishment and confirmed this decision on 29 September 2008.

4.  The evidence of record does not appear to show there was a fatal legal or factual error made in the Article 15 process that would support setting aside the NJP action imposed.  Therefore, the “clear injustice” regulatory standard necessary to set-aside an Article 15 has not been satisfied in this case, and it would not be appropriate to remove the DA Form 2627 from his record.

5.  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)                                         AR20100011828



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ABCMR Record of Proceedings (cont)                                         AR20100011828



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