IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110005964 


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

2.  The applicant states the Article 15 was imposed on him based on speculation and not facts.  He further states a Judge Advocate General (JAG) officer suggested that the charges of fraternization be dismissed but that was ignored.  He claims he is requesting the Article 15 be removed from his OMPF so he can compete for a drill sergeant position and other nominative jobs.  

3.  The applicant provides no documentary evidence in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he initially enlisted in the Regular Army (RA) on 2 September 1998, and he has continuously served in that status through the present.

2.  The applicant’s record shows he was promoted to staff sergeant/E-6 
(SSG/E-6) on 1 June 2008, and is currently serving in that grade at Fort Lee, Virginia.  



3.  On 10 April 2007, while the applicant was serving as a sergeant/E-5
 (SGT/E-5) at Fort Eustis, Virginia, he was notified that his commander was considering whether he should be punished under Article 15 of the UCMJ for violating a lawful general regulation by wrongfully fraternizing with a lower enlisted Soldier.  

4.  On 23 April 2007, the applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by his commander at a closed hearing.  He also requested a person to speak in his behalf and indicated he would present matters in defense, mitigation, and/or extenuation in person.  

5.  The applicant's attorney submitted a memorandum as a matter for consideration in conjunction with the Article 15 hearing by the applicant's commander.  In it, the attorney indicated there was no evidence supporting a conclusion that the applicant fraternized with an enlisted Soldier, or that he was drinking alcohol with Soldiers.  

6.  Subsequent to reviewing all matters presented in defense, mitigation, and/or extenuation, the unit commander imposed punishment of 40 days of extra duty and restriction (suspended) and directed the DA Form 2627 be filed in the restricted portion of the OMPF.  On this same date, the applicant elected not to appeal the punishment imposed by his commander.   

7.  A review of the applicant's OMPF reveals that the DA Form 2627 in question is in fact filed in the restricted portion of the OMPF. 

8.  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 [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.  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, in pertinent part, 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. 



9.  Paragraph 3-37b(1)(a) of the military justice regulation states, in pertinent part, that the decision whether to file a record of non-judicial punishment (NJP) in the performance section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP from the OMPF.  It states, in pertinent part, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the DA Form 2627 in question from his OMPF because the Article 15 was based on speculation rather than facts has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, 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.  

3.  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, after considering all matters submitted in defense of the applicant, to include the attorney letter submitted in his behalf, determined beyond a reasonable doubt that the applicant was guilty of the charged offense.  The 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.  Further, the applicant elected not to appeal the Article 15 punishment at the time it was imposed.  

4.  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 compelling 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)                                         AR20110005964



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ABCMR Record of Proceedings (cont)                                         AR20110005964



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