IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100014864 


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 falsely charged conviction, under Article 15 of the Uniform Code of Military Justice (UCMJ), be expunged from his Official Military Personnel File (OMPF) and from all records screened for security purposes.  

2.  He states, in effect, that he received nonjudical punishment (NJP) on 1 May 2003 for violating Article 128 of the UCMJ.  The punishment resulted in a loss of rank and privileges.  The Office of the Staff Judge Advocate (OSJA), Fort Bliss, TX, has verified that there is no record of court-martial conviction against him.  

3.  He discovered this error in the year 2009 when a state criminal background check was performed on him which resulted in public and private embarrassment. 

4.  He provides a copy of a letter from the OSJA, Fort Bliss, TX, dated 
26 August 2009.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Records available to the Board indicate the applicant enlisted in the Indiana Army National Guard (INARNG) on 31 December 1997.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty 95B (Military Police).  On 12 September 1999, he enlisted in the Regular Army for a period of 5 years.  

3.  A copy of a DA Form 2627 (Record of Proceedings under Article 15 of the UCMJ) shows he was notified on 29 April 2003 that his battalion commander was considering imposing punishment on him for violation of Article 128 (assault), by unlawfully dragging a female by her pants and biting her on the neck.  He indicated that he did not demand trial by court-martial, that he requested a closed hearing, and that he would ask a person to speak on his behalf.  His grade at the time the punishment was administered was specialist/E-4.  The commander specifically indicated that the document was not to be filed in any portion of his OMPF. 

4.  On 1 May 2003, he accepted nonjudicial punishment under Article 15.  His punishment included a reduction to the grade of private/E-1, forfeiture of pay, extra duty for 45 days and restriction to Fort Bliss, TX main cantonment for 45 days.  The applicant did not appeal the punishment.

5.  The letter from the paralegal of OSJA stated, in pertinent part, there was no record of a court-martial conviction on file for the applicant at Fort Bliss, TX for the offense of rape, Article 120 of the UCMJ.  The paralegal also indicated he checked the El Paso County database and could not find any record of criminal convictions on him.  

6.  A review of his OMPF shows a copy of the DA Form 2627 is filed as part of the “Case Files for Approved Separations” under the Military Personnel Records Jacket (MPRJ) and the Service portions of his OMPF. 

7.  His record is void of any evidence and he has not submitted any evidence to show he attempted to contact the Defense Central Investigations Index (DCII) for removal of the allegedly false charges. 

8.  Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states, in pertinent part, titling only requires credible information that an offense may have been committed.  It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  The DCII can be contacted through the United States Army Criminal Investigation Command (USACIDC), United States Army Crime Records Center, 6010 6th Street, Fort Belvoir, Virginia 22060. 

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, MCM.  It states, 
in pertinent part, that the decision whether to file a record of NJP on the performance portion of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  

10.  The Military Justice regulation further stipulates that, with the exception of summarized proceedings, Article 15 proceedings are recorded on a DA Form 2627, which will be filed in either the permanent section or restricted section of the OMPF on those Soldiers in the rank of sergeant and above.  Local filing of these documents is authorized only for Soldiers in the rank of corporal/specialist and below.  

11.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the OMPF, the MPRJ, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that, once placed in the OMPF, a document becomes a permanent part of that file. In pertinent part, the document will not be removed from a section or moved to another part of the file unless directed by the ABCMR.   

12.  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, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files and 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. 

DISCUSSION AND CONCLUSIONS:

1.  A thorough review of his records failed to yield any court-martial convictions or charges of violating Article 120 of the UCMJ for rape.  However, his record does show he received NJP under Article 15 of the UCMJ for violating Article 128 for assault.  His punishment was served and the commander specifically instructed the DA Form 2627 would not be filed in any portion of his OMPF.  Given his rank at the time, local filing was required.

2.  It appears that while preparing his case file for separation the unit included a copy of the DA Form 2627 in the packet as evidence to support the separation action.  Upon his discharge, this packet was filed in accordance with regulatory guidance and placed in his OMPF.  The DA Form 2627 must remain part of the separation packet; removing it would make the packet incomplete.  There appears to be no error or injustice in this case.  As a result, he is not entitled to the requested relief.  

3.  He has not submitted sufficient evidence to show he attempted to clear his record through the DCII of the allegedly false charge.  Therefore, there is no basis to grant this portion of the requested relief. 

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)                                         AR20100014864





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ABCMR Record of Proceedings (cont)                                         AR20100014864



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