IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100020811 


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, Uniform Code of Military Justice (UCMJ)) from his Official Military Personnel File (OMPF).  

2.  The applicant states administrative and clerical errors occurred; specifically, the enclosures and the punishment sheets are not filed in his OMPF along with the Article 15.

3.  The applicant provides:

* his Enlisted Record Brief (ERB)
* five DA Forms 4856 (Developmental Counseling Forms)
* a DA Form 2823 (Sworn Statement) 
* the DA Form 2627 in question
* a memorandum from a legal counsel from the Office of the Staff Judge Advocate, Legal Assistance Division, Fort Carson, CO

CONSIDERATION OF EVIDENCE:

1.  After prior enlisted service in the Regular Army (RA) and the Army National Guard, the applicant enlisted in the RA on 10 August 2001.   

2.  He submitted a copy of his ERB, dated 24 December 2008, that shows he was promoted to staff sergeant (SSG)/E-6 on 1 March 2007.

3.  He received counseling statements for the following offenses:

* not following safe procedures
* failing to utilize the chain of command
* failing to perform his assigned duties
* failing to go at the time prescribed to his appointed place of duty on numerous occasions
* failing to obey a lawful order on two occasions
* insubordination
* being disrespectful towards a senior noncommissioned officer (NCO)

4.  He submitted a DA Form 2823, which states that Sergeant First Class K____h L_____e witnessed him using a disrespectful tone to a senior NCO.

5.  On 3 February 2009, the applicant accepted nonjudicial punishment (NJP).  The DA Form 2627 with continuation sheet shows:

* on 15 May 2008 he willfully disobeyed a lawful command from a senior commissioned officer
* on 16 May 2008 he failed to go at the prescribed time to his appointed place of duty
* on 6 July 2008 he willfully disobeyed a lawful order from a senior NCO
* on18 December and 22 December 2008, he used disrespectful language towards a senior NCO
* in Item 3 (Having been afforded the opportunity to counsel with counsel, my decision are(is) as follows) he checked "I do not demand a trial by court-martial"
* in Item 4 (In a closed hearing all matters presented in defense, mitigation, and/or extenuation, have been considered, the following punishment is imposed), no punishment is listed as being imposed
* in Item 7 (Initial appropriate block, date, and sign) he checked "I do not appeal" as attested to by his signature
* the commander directed that the DA Form 2627 be filed in the restricted section of the applicant's OMPF

6.  He submitted a memorandum from a legal counsel from the Office of the Staff Judge Advocate, Legal Assistance Division, Fort Carson, dated 30 July 2010, who requested removal of the applicant's Article 15 because of administrative and clerical errors that deprived him due process.  The Article 15 did not include the appropriate enclosures, the punishment page is missing, the punishment 

section of the Article 15 is not filled in, and he never received a punishment for the Article 15.  He stated these errors have the potential of significantly impacting of the applicant's future service.  Without being able to prove what the actual punishment was, he will be unable to show that punishment was never issued.  He further stated that future selection boards will be skeptical that the applicant never received any punishment.  

7.  Army Regulation 27-10 (Military Justice) prescribes the guidelines for the filing of NJP actions.  It states that the decision to file the original DA Form 2627 on the performance or restricted section of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5 of the DA Form 2627.

8.  Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice:  

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the NJP punishment process by:

* evaluating the case to determine whether proceedings under Article 15 should be initiated
* determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial
* determining the amount and nature of any punishment, if punishment is appropriate

	b.  Paragraph 3-36 states that when punishment is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action would be recorded on a
DA Form 2627.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the 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.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) states that once placed in the OMPF, a document becomes a 

permanent part of that file.  The restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  Documents in this section include those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the NJP was properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time with no indications of any procedural errors that would have jeopardized his rights.

2.  The evidence of record confirms the applicant violated the UCMJ and subsequently accepted NJP for willfully disobeying a lawful command from a senior commissioned officer, failing to go at the prescribed time to his appointed place of duty, willfully disobeying a lawful order from a senior NCO, and using disrespectful language towards a senior NCO.

3.  The evidence also shows that he was afforded due process in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting the NJP.  He chose to accept the NJP in lieu of demanding trial by court-martial.  His further did not appeal the NJP.

4.  The imposing commander did not direct that he be punished by reduction, forfeiture of pay, or extra duty or restriction, but directed that the NJP be filed in the restricted section of his OMPF.  There is no evidence of error or injustice by the omission of the words "NO PUNISHMENT IMPOSED."

5.  The applicant has the burden of proving that the NJP was in error or unjust.  He accepted the NJP and it is facially correct.  The ABCMR does not remove documents from the OMPF to enhance a Soldier's career opportunities.  Each case is considered on its own merits and action is taken to correct a record when the evidence is sufficient to show that an error or injustice or both exists.

6.  In view of the above, there is no basis for granting the applicant's 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)                                         AR20100020811



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1