BOARD DATE: 1 September 2015
DOCKET NUMBER: AR20150010709
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 appellant requests that a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be removed from the restricted portion of his Official Military Personnel File (OMPF).
2. He states he believes the company grade Article 15 should be removed since he was commissioned in 2009. He adds it has served its purpose as a rehabilitative tool while he was enlisted, but it is no longer relevant. He believes that the Article 15 does not reflect the type of leader and Soldier that he was and is today. He states the proceedings are 8 years old and all of the punishments were suspended at the time. Additionally, his chain of command endorsed and recommended him for Officer Candidate School one year later.
3. He provides the DA Form 2627.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he enlisted in the Regular Army on 20 April 2004. He served in Kuwait from 10 June 2007 to 3 August 2008. He was promoted to staff sergeant on 1 July 2007.
2. A DA Form 4856 (Developmental Counseling Form), dated 30 July 2007, shows that the applicant's commander counseled him on steps to be taken before leaving Kuwait and upon returning to Fort Bragg, NC in relation to his family problems.
a. The commander explained that the applicant should focus on creating a safe living environment for his children and getting his finances in order prior to returning to Kuwait for duty. He further stated, in pertinent part, that in light of the applicant's family situation and the possibility that his wife had become involved with drugs and had potentially put his family in a bad situation with other people coming and going (men included), he would work with him to develop a plan that would keep him, his wife, their children, and unknown people living in the house as safe as they could make it.
b. The commander listed nine things the applicant should follow to ensure his safety. The commander stated, in pertinent part, that "You [applicant] will not enter your home alone. You will meet with other NCOs [noncommissioned Officers] from the G-4 section upon arrival in North Carolina. You will be escorted to your residence. You do not know who or what may be there. This is for your own safety as well as the safety of your children." The applicant initialed the counseling form indicating that he agreed. Additionally, he signed and dated the form on 30 July 2007.
3. On 4 October 2007, nonjudicial punishment was imposed against him for willfully disobeying a lawful command from a superior commissioned officer to meet G-4 staff at the airport so that they could escort him to his home on 30 July 2007. His punishment consisted of a forfeiture of $587.00 per month, suspended, to be automatically remitted if not vacated before 4 January 2008; and extra duty for 14 days. The DA Form 2627 was directed to be filed in the restricted portion of the applicant's OMPF.
4. He was honorably discharged on 3 June 2009 to accept a commission as a second lieutenant (2LT), which was accomplished the following day. On
1 January 2013, he was promoted to the rank/grade of captain (CPT)/O-3.
5. Army Regulation 600-37 (Unfavorable Information) states 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.
6. Army Regulation 27-10 (Military Justice) states that enlisted Soldiers in the rank of sergeant or above, and commissioned officers may request the transfer of a DA Form 2627 from the performance section to the restricted section of their OMPF. To support the request, the Soldier must submit substantive evidence that the intended purpose of the nonjudicial punishment has been served and that transfer of the record is in the best interest of the Army. On approval of a change in status from enlisted to commissioned officer, on or after 1 September 1979, records of nonjudicial punishment received while in an enlisted status and filed in the OMPF will be transferred to the restricted section of the OMPF.
DISCUSSION AND CONCLUSIONS:
1. In 2007, the imposing commander appears to have given serious thought to the implications of filing a DA Form 2627 on the applicants military career and directed it be filed in the restricted portion of the applicants OMPF.
2. Since then, the applicant certainly has continued to excel as a Soldier, as evidenced by his commissioning as a 2LT and his subsequent promotion to CPT. However, removal of the DA Form 2627 from his restricted file may only be based on evidence that the record of nonjudicial punishment is untrue or unjust. There is no evidence indicating that the record of nonjudicial punishment in the restricted portion of the applicant's OMPF is either untrue or unjust. Thus, the evidence of record does not support removal of the record of nonjudicial punishment from his 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.
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