IN THE CASE OF:	  

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110014041 


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 his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 19 November 2007, be removed entirely from his official military personnel file (OMPF).

2.  The applicant states the Article 15 was given to him for approaching a fellow captain (CPT) about an issue/comment he made.  He would like the Article 15 removed since justice has been served on his behalf.  He wants to continue his career on active duty and to serve his country once again.

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a Reserve commissioned officer of the Army on 8 May 2003 with concurrent call to active duty after having previous enlisted service.  He is currently assigned to a U.S. Army Reserve troop program unit as a military intelligence officer.

3.  On 19 November 2007 while serving in Iraq and holding the rank of CPT, he accepted nonjudicial punishment (NJP) in a closed hearing under the provisions of Article 15 of the UCMJ for conduct unbecoming an officer and a gentleman and for assaulting a fellow CPT by striking him in the chest, grabbing him by the collar, pushing him, and threatening him.  The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's OMPF.  The applicant elected not to appeal his NJP.

4.  The applicant submitted a self-authored statement as evidence in this case.  He states he was given an Article 15 for the following reasons:

* an altercation with a fellow CPT who made remarks about him in front of their noncommissioned officers (NCO's)
* the other CPT questioned his integrity and honor to the team
* he tried to speak with him, but the other CPT would not acknowledge him
* he grabbed him by the collar and made the remark, "next time you make a remark in front of the NCO's like that, I am going to kick your ass"
* he tried to solve the issue with the other officer, but it did not work out
* his chain of command determined he had an anger management problem
* he was frustrated with some of the issues encountered during the deployment

5.  Since the applicant's Article 15 he has received:

	a.  three officer evaluation reports which state that he is a team player, a good communicator, has improved his unit of assignment, and recommend him for promotion to major/O-4; and

	b.  an Army Achievement Medal for the period 30 June 2008 through 10 July 2008 and a Meritorious Service Medal for the period 16 December 2007 through 15 May 2009.

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

	a.  Chapter 3 provides that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  It further states that NJP is appropriate in all cases involving minor offenses in which nonpunitive 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.

	b.  Paragraph 3-37 b(1)(a) provides that the decision to file the report of NJP (DA Form 2627) in the performance or restricted portions of the OMPF will be made by the imposing commander at the time NJP is imposed.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  Paragraph 3-43e states requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  It 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 proper authorities listed in the regulation.

8.  Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, provides 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.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant received NJP under Article 15 for conduct unbecoming an officer and a gentleman by assaulting a fellow CPT by striking him in the chest, grabbing him by the collar, pushing him, and threatening him.  The Article 15 was directed to be filed in the performance section of his OMPF.

2.  He was afforded the right to consult with counsel and he elected not to have his case considered by a trial by court-martial.  He did not elect to appeal the NJP.

3.  He has not provided convincing evidence which demonstrates an error or injustice occurred.  He also submitted no evidence of any injustice which led to the Article 15 or to warrant relief as a matter of equity.  By regulation, there must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record.  Absent evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removal of the DA Form 2627 from his OMPF.

4.  In view of the foregoing, there is no basis for granting his request.

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 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)                                         AR20110014041



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ABCMR Record of Proceedings (cont)                                         AR20110014041



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