BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100013124 


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 the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) he received on or about 7 May 2009 from his official military personnel file (OMPF).  

2.  He states he feels in receiving the Article 15 he was not afforded his legal rights.  He was denied the opportunity to prove his case.  During the proceedings, he proved the first sergeant was lying.  He also showed with his phone record that there was never any phone call made to him to notify him of any changes to the drill schedule.  He has a list of 31 other Soldiers who missed the same movement with statements from 9 of them.  He asked why he was the only one who received an Article 15 and was told by his first sergeant and company commander they could not punish the other Soldiers.  He further states he was not able to call his witness on his behalf.  

3.  He provides his:

* DA Form 2627
* Article 15 Appeal package
* Letter from the Office of the Inspector General

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) in pay grade E-3 on 8 August 2002, with prior enlisted service.  He was ordered to active duty in an Active Guard Reserve status with a reporting date of 18 April 2005.

2.  On 7 May 2009, he accepted punishment under Article 15, UCMJ, for being derelict in the performance of duties by negligently falling asleep in the arms room while performing the sensitive items inventory on 14 February 2009 and for absenting himself from his unit and negligently missing his company's required movement on 14 March 2009.  He did not demand trial by court-martial and requested an open hearing.  His punishment consisted of a reduction to pay grade E-5 and a forfeiture of 7 days pay per month for 2 months (suspended, to be remitted if not vacated by 6 July 2009).  His commander directed the DA Form 2627 be filed in the performance portion of the applicant's OMPF.  The applicant was also advised of his right to appeal the punishment, and he elected to appeal the punishment.

3.  He provided his appeal package wherein he stated he had evidence of his innocence and the government possessed no evidence of his guilt.  Additionally, the punishment imposed was unjust and disproportionate even if he was guilty.  He also stated he was not guilty of being absent without leave (AWOL) because he was at the assigned place of duty at the time prescribed as evidenced by two submitted sworn statements and leave requests.  He also was not guilty of missing movement because he was never informed of the changes to the training schedule.  He submitted his phone record, stating it did not reflect any calls from master sergeant B _ _ _ _ _ _ or the unit.  He further stated he submitted the appeal to request a fair hearing with all the facts.

4.  On 16 May 2009, his appeal was denied after the proceedings were found to have been properly conducted under law and regulation and the punishment appropriate.  On 27 May 2007, he acknowledged the action taken.

5.  In a letter, dated 4 February 2010, the Office of the Inspector General advised the applicant that after a thorough inquiry they found his concerns and allegation to be non-substantiated.  That office concurred that his Article 15 was conducted in accordance with military law and regulation.  

6.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states that nonjudicial punishment is imposed to correct misconduct, as a result of intentional disregard of or failure to comply with prescribed standards of military conduct, in violation of the UCMJ.  Nonjudicial punishment may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  

7.  Army Regulation 27-10, paragraph 3-37(1)(a) specifies the decision to file the original DA Form 2627 on the performance or restricted portions in the OMPF will be made by the imposing commander at the time punishment was imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF.  It states application for removal of a DA Form 2627 from a Soldier's OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further states that there must be 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 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was punished under Article 15 for dereliction in the performance of duties by negligently falling asleep in the arms room while performing the sensitive items inventory and absenting himself from his unit and negligently missing his company's required movement.  The Article 15 was directed to be filed on the performance portion of his OMPF.  

2.  He submitted an appeal and stated that he could prove he was not guilty of being AWOL and missing formation.  He was afforded the right to consult with counsel and the evidence shows he elected not to have his case considered by a trial by court-martial.  He elected to appeal the punishment and his appeal was denied and the proceedings were found to have been properly conducted under law and regulation and his punishment was found to be appropriate.  He was also advised by the Office of Inspector General that his concerns and allegation were non-substantiated and they concurred that his Article 15 was conducted in accordance with military law and regulation.  

3.  He has not provided convincing evidence that his 2009 Article 15 was unjust, in whole or in part, to support its removal from his OMPF.  He also submitted no evidence of any injustice which led to the Article 15 or to warrant relief as a matter of equity.  By regulation, there must be compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record.  Absent evidence meeting this regulatory standard there is an insufficient evidentiary basis to support removal of the form from his OMPF.  

4.  In view of the foregoing, there is no basis for granting his requests.

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)                                         AR20100013124





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ABCMR Record of Proceedings (cont)                                         AR20100013124



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