IN THE CASE OF:
BOARD DATE: 24 May 2012
DOCKET NUMBER: AR20120008099
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 a DA Form 2627 (Record of Proceedings Under Article 15 UCMJ) from his Official Military Personnel File (OMPF).
2. The applicant states he has paid for his dereliction of duty with hard work and consistent good conduct over the years.
3. The applicant provides his last three Noncommissioned Officer Evaluation Reports (NCOERs) in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he was promoted to staff sergeant/E-6 on 1 December 2008, and is currently serving at Fort Lee, Virginia at the time of his application to the Board.
2. On 6 October 2004, while serving as a sergeant/E-5 (SGT/E-5) at Fort Campbell, Kentucky he was notified that his unit commander was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in his duty. The applicant elected not to demand a trial by court-martial and chose to have his case considered by his commander at a closed hearing. He also did not elect to submit matters in defense, mitigation, or extenuation.
3. Subsequent to reviewing all matters, on 19 October 2004, the unit commander imposed punishment of a forfeiture of $497.00 and extra duty for
14 days. The commander directed that the DA Form 2627 be filed in the restricted (R) portion of the applicant's OMPF. The applicant elected not to appeal the punishment imposed.
4. 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, Manual for Courts-Martial. Paragraph 3-18l 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 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.
5. Paragraph 3-37b(1)(a) of the military justice regulation states, in pertinent part, that the decision whether to file a record of nonjudicial 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 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 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 he has paid for his mistake and has performed well since the action 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 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 by the imposing commander.
4. The governing regulation requires that there must be evidence the document is untrue or unjust in whole or in part in order for the ABCMR to support removal of a properly completed, facially-valid DA Form 2627 from a Soldier's record.
5. Absent evidence of an error or injustice in the Article 15 processing, the regulatory burden of proof necessary to set aside the Article 15 or to remove it from the applicant's OMPF has not been satisfied in this case. As a result, 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) AR20120008099
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ABCMR Record of Proceedings (cont) AR20120008099
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