IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100029900


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:

   a.  The presence of the Article 15 negatively effects his chances for promotion.
   
   b.  The record of non-judicial punishment (NJP) was administered 17 years ago when he was a staff sergeant (SSG) in the year 1993 and has served its intended purpose.
   
   c.  The NJP should have no bearing on his future potential.
   
   d.  He has since received two promotions and attended the Sergeant's Major Academy and feels any negative information in his record might be held against him.

3.  The applicant provides a self-authored statement.


CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military record shows he initially enlisted in the Regular Army on 17 January 1985.  He was trained in and awarded military occupational specialty 31K (Combat Signaler).

2.  The applicant is currently serving on active duty with Headquarters and Headquarters Battery, 1st Battalion, 77th Field Artillery Regiment, in Germany in the rank of master sergeant (MSG).

3.  The applicant’s OMPF contains a DA Form 2627 that shows:

   a.  He accepted NJP on 4 February 1993, while serving in the rank of SSG, for disobeying a lawful order and dereliction.

   b.  He elected not to demand a trial by court-martial, and instead he chose for the matter to be handled by his company commander in a closed hearing;

   c.  Subsequent to the hearing, the punishment imposed consisted of a forfeiture of $320.00 pay for 1 month (suspended if not remitted by 4 May 1993), and 14 days of extra duty and restriction.

   d.  The commander directed the DA Form 2627 be filed in the restricted section of the applicant's OMPF.

   e.  The applicant did not appeal the punishment 
   
4.  The applicant was promoted to sergeant first class (SFC) on 1 May 1996 and to MSG on 1 January 2001.

5.  A review of the applicant's OMPF reveals the DA Form 2627 in question is in fact filed in the restricted section of his OMPF along with three DA Forms 4856 (General Counseling Form) he received referencing his actions leading to this punishment.

6.  A U.S. Army Human Resources Command, DA Secretariat for Senior Enlisted Selection Boards, memorandum for record, dated 14 May 2010, indicates that the Article 15 from the restricted portion of the applicant's OMPF was released to the Fiscal Year 2010 Command Sergeant Major/Sergeant Major Training and Selection Board on 20 April 2010.


7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  

	a.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM [Manual for Courts-Martial].  Paragraph 3-18(1) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

	b.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there is an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

	c  Paragraph 3-37b(1)(a) states that whether to file a record of NJP in the restricted section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  

	d.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP 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 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.  Army Regulation 600-37, chapter 7 contains guidance on appeals and petitions for removal of unfavorable information from official personnel files and 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 contention that the DA Form 2627 in question should be removed from his OMPF because it has served its intended purpose was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's Article 15 processing was accomplished in accordance with the applicable law and regulation, and that the imposing commander determined beyond a reasonable doubt that the applicant was guilty of the charged offense.  There is no evidence of record or independent evidence provided by the applicant that would call into question the validity of this decision of the imposing commander.

3.  The governing regulation also requires that in order for the ABCMR to support removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record, there must be clear and compelling evidence of clear injustice and/or evidence that shows the document is untrue or unjust, in whole or in part.  There is no evidence of record or independent evidence provided by the applicant that satisfies this regulatory burden of proof.  Therefore, there is an insufficient evidentiary basis to support removal of the Article 15 from the applicant's OMPF. 

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)                                         AR20100029900





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ABCMR Record of Proceedings (cont)                                         AR20100029900



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