IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20130003733 


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 the non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), dated 
15 January 1999, from his Army Military Human Resource Record (AMHRR).

2.  The applicant states he received the Article 15 for being late to a unit formation.  However, at his next duty station, in September 2000, he was diagnosed with a sleeping disorder (narcolepsy).  Prior diagnosis would have prevented the Article 15 from being administered.  He has had no further instances of missing or being late to formations since his 15 January 1999 NJP because he has received treatment for his narcolepsy.  He was first diagnosed with narcolepsy with hypersomnia (excessive sleepiness and trouble staying awake) on 27 September 2000.  Later, on 29 March 2011, he was correctly diagnosed with obstructive sleep apnea which has the same chief symptom of hypersomnia.  

3.  The applicant provided:

* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
15 January 1999
* Memorandum, dated 15 January 1999
* Multiple Sleep Latency Report, dated 27 September 2000
* Standard Form (SF) 600 (Chronological Record of Medical Care), dated 21 February 2002
* SF 513 (Consultation Sheet), dated 8 January 2003
* DA Form 3349 (Physical Profile), dated 30 January 2003
* Medical Waiver Request, dated 25 November 2009
* Medical progress notes, dated 29 March 2011, 12 April 2011, and 9 June 2011
* Letter of Reconsideration, dated 17 December 2012
* Self-authored statement, 11 February 2012
* Letter of Support, dated 11 February 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 April 1993 and currently holds military occupational specialty 42R (Band Member).  He has been assigned to various stateside and overseas assignments and currently holds the rank/grade staff sergeant (SSG)/E-6.

2.  His record shows he accepted NJP under the provisions of Article 15 of the UCMJ on 15 January 1999, for failing to go to morning formation.  His rank/ grade at the time of this NJP was sergeant/E-5.  He elected not to have a trial by court-martial and not to appeal the NJP.  Additionally, item 5 of his DA Form 2627 directed filing in the performance folder of his AMHRR.

3.  He provided a Multiple Sleep Latency Report, issued by LaFayette Sleep Laboratory-Sleep Disorder Center on 27 September 2000.  This report shows he tested positive for having a sleep disorder which was strongly suggestive of narcolepsy.

4.  He provided an SF 600 issued by the Neurology Clinic, Womack Army Medical Center, Fort Bragg, NC on 21 February 2002.  This form stated that though he had previously been diagnosed with narcolepsy, the neurology clinic found there was no evidence of narcolepsy; however, his symptoms were most consistent with hypersomnia.

5.  He provided a physical profile, dated 29 June 2003, which stated he has a permanent profile for narcolepsy but was stable on medications.

6.  His record shows he accepted NJP under the provisions of Article 15 of the UCMJ on 6 October 2004, for wrongfully engaging in an inappropriate relationship with a female Soldier in the rank/grade of specialist/E-4.  His rank/grade at the time of this NJP was SSG/E-6.  He elected not to have a trial by court-martial and not to appeal the NJP.

7.  His record contains a Noncommissioned Officer Evaluation Report (NCOER) for the period April 2004 through October 2004 wherein it shows he had been serving as an assistant squad leader.  His NCOER shows he was removed from his position as assistant squad leader due to an inappropriate relationship with a subordinate Soldier.

8.  He provided a medical waiver request issued by the U.S. Army Central Command on 25 November 2009, wherein it shows he had been diagnosed with sleep apnea and had been placed on a Continuous Positive Air Pressure Machine.

9.  He provided three medical progress notes, dated 29 March 2011, 12 April 2011, and 9 June 2011 which show he suffered from obstructive sleep apnea and organic hypersomnia.

10.  He provided two letters in support of removing the 15 January 1999 NJP.

11.  He has accomplished the following since receiving the contested Article 15:

* Reenlisted multiple times
* Completed the Basic Noncommissioned Officer (NCO) Course
* Received multiple NCOERs showing "Among the Best" and "Successful/Superior" ratings
* Awarded multiple awards of the Army Achievement Medal, Army Commendation Medal, Army Good Conduct Medal, and Military Outstanding Volunteer Service Medal
* Completed the Army Bands Senior Leaders Course
* Served in a variety of stateside or overseas assignments - including Korea

12.  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 3-37b(1)(a) provides that the decision to file the report of NJP (DA Form 2627) in the performance or restricted portions in the AMHRR will be made by the imposing commander at the time punishment is imposed.  
13.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) establishes the responsibilities, policies, and procedures for maintaining and controlling the AMHRR.  It states that once a document is placed in the AMHRR, 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.  Table B-1 of this regulation states all UCMJ, Article 15 documents and forms will be filed in accordance with Army Regulation 27-10.  File the UCMJ, Article 15 in either the “Performance” or “Restricted” folder as directed by item 5 of the DA Form 2627.

14.  Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, provides that once an official document has been properly filed in the AMHRR, 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 AMHRR.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  It has been noted that the applicant received an Article 15 in 1999 for missing morning formation and was then diagnosed with a sleep disorder approximately 1 year later.  

2.  Commanders issue NJP as a correctional tool which is intended to impress the importance of adhering to military rules and regulations.  NJP is only removed if it had been improperly filed or contains erroneous information and only transferred if it can be shown that the NJP has clearly served the intended purpose.  

3.  The evidence of record shows he received NJP under the provisions of Article 15 of the UCMJ on 6 October 2004, for wrongfully engaging in an inappropriate relationship with a subordinate female Soldier.  

4.  His receipt of this additional NJP clearly shows his initial NJP was not successful in motivating him to follow military rules and regulations, and; therefore, has not served the intended purpose.  As such, there is no reason to remove this Article 15 from his AMHRR or transferring it to the restricted folder.



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)                                         AR20130003733



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130003733



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1