IN THE CASE OF:	  

		BOARD DATE:	  30 June 2015

		DOCKET NUMBER:  AR20150007468

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 the removal of a company grade Article 15 from his record.

2.  The applicant states:

     a.  The company grade Article 15 has served its intended purpose because all the punishment has been completed.

   b.  According to Army Regulation 27-10 (Military Justice), paragraph 3-37(2), for those reports directed for filing in the restricted section of the official military personnel file (OMPF), a photocopy will be filed in the unit nonjudicial punishment files and destroyed at the expiration of 2 years from the date of punishment or on the Soldier's transfer, whichever occurs first.
   
   c.  Army Regulation 600-37 allows such removals when the company grade Article 15 has served its intended purpose, has been in the Army military Human Resource Record since the imposition of the punishment, the Solder is at least a staff sergeant, and has received at least one NCOER since the filing of the Article 15.
   
   d.  He has been trying to get this taken care of for years without success.

3.  The applicant provides:

* A self-authored letter dated 14 January 2015
* A DA Form 2627 (Record of Proceedings Under Article 15, Under Uniform Code of Military Justice
* Waiver of rights letter
* Enlisted Record Brief
* A DA form 4856 (Developmental Counseling Form)
* A DA From 268 (Report to Suspend Favorable Personnel Actions
* DA Forms 2823 (Sworn Statements)
* A DA Form 3881 (Rights Warning Procedure/Waiver Certificate)

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.  On 26 October 1995, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 91C (Utilities Equipment Repairer).

3.  The restricted portion of his OMPF contains a DA Form 2627 showing that, on 27 August 2007, he received an Article 15, for drunk and disorderly conduct and assault.  He was a sergeant (SGT)/Pay grade E-5 at the time.

4.  The DA Form 2627 also shows he was advised of his rights and afforded the opportunity to consult with counsel.

	a.  He did not demand a trial by court-martial.  He requested a closed hearing and did not request to have anyone to speak in his behalf.

	b.  On 27 August 2007, having considered all matters presented, the company commander found the applicant was guilty of the misconduct.  The imposing authority directed the DA Form 2627 be filed in the restricted section of the applicant's OMPF.  The following punishment was imposed:  a forfeiture of $595.00 of pay per month for one month, suspended, to be automatically remitted if not vacated before 26 September 2007; extra duty for 14 days; restriction for 14 days; and an oral reprimand.  He did not appeal the findings.

5.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.

   a.  Chapter 3 states 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.  NJP may be set aside or removed upon a determination that under all the circumstances of the case a clear injustice has resulted.

	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the 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.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of his DA Form 2627, dated 27 August 2007, from his OMPF was carefully considered.

2.  The evidence of record confirms the applicant violated the UCMJ while serving as a sergeant and he subsequently accepted NJP on 27 August 2007 for drunk and disorderly conduct and assault.  The imposing commander directed filing the Article 15 in the restricted section of his OMPF.  

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the restricted portion of his OMPF as directed by the imposing commander.  There is no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust.  

4.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  In the absence of an error or an injustice, there is no reason to remove it from his records.

5.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  He violated the UCMJ and he was punished for it.  Any negative impact of this NJP appears to be a natural result of his actions.

6.  Furthermore, the applicant's interpretation of the Army regulations is not supported by fact.  The unit where the Article 15 took place is only required to hold the Article 15 record for 2 years and may destroy it.  This does not affect the requirement to file the document in the Soldier'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)                                         AR20140015427



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ABCMR Record of Proceedings (cont)                                         AR20150007468



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