IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110003532 


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,  removal of the DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 February 1997 and 17 February 2006, and the General Officer Memoranda of Reprimand (GOMORs) which apply to these Article 15s from his official military personnel file (OMPF).

2.  He states:

   a.  Army Regulation 27-10 (Military Justice), paragraph 3-44 states that removal of Article 15s can occur when the veteran's service can assist the Army and its mission for America's freedom; 

   b.  his continued service can benefit the Army with his expertise in his military occupational specialty's duties and training of others; 

   c.  he wishes to join his fellow Soldiers in today's fight against terrorism and for America's security; and 

   d.  please remove the requested Article 15s and matching GOMORs and allow him to return to active duty in order to serve again proudly and to make his family stand tall in its patriotism.


3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  He initially enlisted in the U.S. Army Reserve (USAR) on 17 July 1986 and, after subsequently serving in the California Army National Guard (CAARNG), he enlisted in the Regular Army on 25 February 1988. 

2.  On 7 January 1997, the applicant received a GOMOR for driving under the influence of intoxicating liquor on 8 December 1996.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the UCMJ.  

3.  On the same date, he acknowledged receipt of the GOMOR and elected not to submit matters on his behalf.  

4.  On 18 February 1997, while holding the rank/grade of SGT/E-5 and in an open hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for operating a vehicle while drunk.  This action covered the same incident addressed in the 7 January 1997 reprimand.

5.  After consideration of all matters presented in the closed hearing, the imposing commander decided that, beyond a reasonable doubt, the applicant had committed the offenses.  A copy of the Field Grade Article 15 Punishment Worksheet signed by the imposing commander indicates he imposed the punishment of extra duty for 45 days, reduction to E-4, a forfeiture of $667.00 pay for 2 months, and 45 days restriction (suspended).

6.  The imposing official directed the original DA Form 2627 be filed in the performance section of the applicant’s OMPF.  The applicant was advised of his right to appeal to the commander of the 16th Sustainment Brigade within 5 calendar days.  On 20 February 1997, his appeal was denied.

7.  Review of the interactive Personnel Electronic Records Management System (iPERMS) shows a copy of the subject Article 15 was filed in the performance  section of his OMPF.  

8.  On 24 February 1997, his commander and intermediate commanders recommended that the GOMOR be filed in his OMPF and stated that as a noncommissioned officer he knew the consequences of his actions.

9.  On 28 April 1997, the imposing authority directed that the GOMOR be filed in the applicant's OMPF in accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 3-4b.  The GOMOR and allied documents are filed in the performance portion of his OMPF.  

10.  On 4 September 1997, he was discharged from active duty after serving for 9 years, 6 months, and 10 days and enlisted in the CAARNG.  He was discharged from the CAARNG on 11 February 1998 and enlisted the next day in the USAR.

11.  On 25 November 2001, he again enlisted in the RA. 

12.  On 6 January 2006, while holding the rank/grade of SFC/E-7 and in an open hearing, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully operating a government owned vehicle without a valid state driver's license.

13.  After consideration of all matters presented in the closed hearing, the imposing commander decided that, beyond a reasonable doubt, the applicant had committed the offenses.  A copy of the Field Grade Article 15 Punishment Worksheet signed by the imposing commander indicates he imposed the punishment of extra duty for 45 days and a forfeiture of $450.00 pay for 2 months.

14.  The imposing official directed the original DA Form 2627 be filed in the performance section of the applicant’s OMPF.  The applicant was advised of his right to appeal within 5 calendar days.  On 17 February 2006, his appeal was denied.

15.  Review of iPERMS shows a copy of the subject Article 15 was filed in the performance portion of his OMPF.  

16.  On 27 January 2006, the applicant received a GOMOR for drunk driving on 25 November 2005.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the UCMJ.  

17.  On 7 February 2006, he acknowledged receipt of the GOMOR and on 8 February 2006 submitted the following statement on his behalf:

	a.  he had been in the Army for over 18 years; 14 years on active duty and 4 years in the USAR.  He wanted to be considered for promotion to master sergeant at the next promotion board and realized that having adverse action placed in the performance portion of his OMPF would decrease his chances for selection; and 

   b.  although he was stopped for speeding, the officer administered a portable breath test (breath analyzer), it was not nor could it be proven the results were correct.  Immediately after the test he asked to see the results but the officer did not give them to him because he had immediately cleared the results.  The tube he blew into was not presented to him in a sealed package and for those reasons, he did not submit to another test until two hours later at the county jail. 

18.  On 22 March 2006, the imposing authority directed that the GOMOR be filed in the applicant's OMPF in accordance with Army Regulation 600-37, paragraph 
3-4b.  The GOMOR and allied documents are filed in the performance portion of his OMPF.  

19.  On 12 February 2006, the applicant was arrested for drunk driving near his post at Fort Dix, NJ.  He was subsequently convicted of this offense in a civilian court on 28 January 2008.  

20.  On 20 July 2008, his commander initiated discharge proceedings under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 
14-5a(1) for misconduct, conviction by a civilian court.  The commander recommended he receive an under other than honorable characterization of service.

21.  On 5 September 2008, he submitted a waiver of his rights to a discharge board, conditional upon his receipt of a general (under honorable conditions) discharge.  On 6 December 2008, the separation authority accepted the waiver

22.  On 19 April 2009, he was discharged from the RA with a general (under honorable conditions) characterization due to misconduct (civil conviction).  He had served for a total of 17 years, 4 months, and 26 days on active duty.  

23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

24.  Army Regulation 27-10 provides the applicable policies for administration of NJP.  The regulation states that NJP may be imposed to correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627.  The regulation also states that absent compelling evidence, a properly-completed and valid DA Form 2627 will not be removed from a Soldier’s record.

25.  Army Regulation 27-10, paragraph 3-44 states that:

   a.  Records of proceedings and supplementary action under Article 15 recorded on DA Forms 2627 and 2627–2 (Record of Supplementary Action Under Article 15, UCMJ), previously or hereafter administered, may be used as directed by competent authority.  Allied documentation transmitted with the original or copies of DA Forms 2627 and 2627–2, where filed with any of these forms, will be considered to be maintained separately for the purpose of determining the admissibility of the original or copies of DA Forms 2627 or 
2627–2 at courts-martial or administrative proceedings.

   b.  A record of nonjudicial punishment or a duplicate as defined in Military Rules of Evidence 1001(4), not otherwise inadmissible, may be admitted at courts-martial or administrative proceedings from any file in which it is properly maintained by regulation.  A record of nonjudicial punishment, otherwise properly filed, will not be inadmissible merely because the wrong copy was maintained in a file.

26.  Army Regulation 600-37 states 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.

27.  Army Regulation 600-37 also states that records of non-judicial punishment may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.  

28.  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 Army Personnel Qualification Records.  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 ABCMR, the Department of the Army Suitability Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the U.S. Army Human Resources Command, the OMPF custodian when documents have been improperly filed, Human Resources Command, as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the two Article 15s and two associated GOMORS should be removed from this OMPF so he can further serve his county was carefully considered and found to lack merit.  

2.  His NJP proceedings were conducted in accordance with law and regulation and the Article 15s and allied documents are properly filed in his OMPF as directed by the imposing commanders.  There is no evidence of record and the 
applicant provides insufficient evidence to show the DA Forms 2627 and GOMORs are untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust, or the applicant must present compelling evidence to warrant removal as a matter of equity.

3.  The evidence shows each of these documents was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.

4.  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.

5.  The applicant failed to submit evidence that the documents in question that are filed in the performance section of his OMPF are untrue or unjust.  Therefore, they are deemed to be properly filed and should be retained in his OMPF.  Therefore, there is no basis for granting 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)                                         AR20110003532





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ABCMR Record of Proceedings (cont)                                         AR20110003532



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