IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100015219 


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 Proceeding under Article 15 of the Uniform Code of Military Justice (UCMJ)), dated 
27 August 1990, from his official military personnel file (OMPF).

2.  The applicant states the Article 15 was unjust because he was charged with being absent without leave (AWOL) when he was on an approved pass granted by the Infantry Officer Basic Course (IOBC) company first sergeant.  He also states that he was a second lieutenant when the incident occurred and that he has served 20 years and his service has been commendable with no other negative administrative actions.  He was recently selected for a battalion command position with the 1st Calvary Division.  He further states this Article 
15 may prevent him from being selected for colonel.

3.  The applicant provides the following in support of his application:

* DA Form 2627, dated 27 August 1990
* Applicant's petition for Removal/Transfer of Article 15, dated 16 March 1994 
* Department of Army Suitability Evaluation Board (DASEB) Memorandum, dated 5 May 1994

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently on active duty serving as the Forces Command, Inspector General, Chief of Inspections Branch, Fort McPherson, Georgia.
2.  On 24 September 1990, while attending IOBC at Fort Benning, Georgia, at a closed hearing the applicant waived his right to trial by court martial and accepted nonjudicial punishment (NJP) under Article 15 for the following misconduct:  without authority, absenting himself from his unit, to wit: Company B, 2d Battalion, 11th Infantry, Troop Support Battalion, Fort Benning, on or about 5 July 1990, in violation of Article 86 of the UCMJ. 

3.  Since the incident, the applicant received 15 officer evaluation reports containing favorable comments and recommendations from his rating chain regarding both his performance and his potential.

4.  On 5 May 1994, the DASEB approved the transfer of the DA Form 2627 to the restricted portion of his OMPF.

5.  The applicant was promoted to lieutenant colonel on 1 November 2007.  His record contains no other derogatory information.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF states that the restricted portion of the OMPF is for historical data that may normally be improper for viewing by selection boards or career managers.  The restricted file ensures that an unbroken, historical record of a member's service, conduct, duty performance, evaluation periods, and corrections to other parts of the OMPF is maintained.  It is intended to protect the interest of the Soldier and the Army. 

7.  Army Regulation 600-37 (Unfavorable Information) further specifies 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.  

8.  Army Regulation 27-10 (Military Justice), paragraph 3-43, contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states, in pertinent part, that application for removal of an Article 15 from a Soldier's OMPF based on error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further states 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.

9.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 states that NJP is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment is the sole discretion of the imposing commander.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DA Form 2627, dated 27 August 1990, should be removed from the restricted portion of his OMPF was carefully considered but there is no evidentiary basis to grant relief.

2.  The applicant contends the Article 15 he received for being AWOL was unjust because he had an approved pass from the company first sergeant.  However, there is no evidence contained in the record or provided by the applicant to support his claim.  On 5 May 1994, the DASEB approved the transfer of the Article 15 to the applicant's restricted section of his OMPF.  The evidence shows the Article 15 was properly administered in accordance with applicable regulations and properly filed.

3.  The purpose of maintaining the OMPF is to protect the interests of the Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

4.  By regulation, there must be clear and compelling evidence of an injustice or error to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.  There is no evidence of an error or injustice.

5.  In view of the above, the applicant's request should be denied.

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.



      _______ _ XXX  _______   ___
               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)                                         AR20100015219



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015219



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1