RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         16 March 2006
      DOCKET NUMBER:  AR20060000420


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James G. Gunlicks             |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Richard G. Sayre              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of a Record of Proceedings
Under Article 15, UCMJ (DA Form 2627) from the restricted portion (R-Fiche)
of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he requests the Article 15 in
question be removed prior to his consideration for warrant officer
appointment.

3.  The applicant provides a Self-Authored Memorandum and Noncommissioned
Officer Evaluations Reports (NCOERs) for 2000 through 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that as of the date of his application to
this Board, he was still serving on active duty, in the rank of staff
sergeant (SSG).

2.  On 26 July 2000, while he was serving as a SSG in Europe, the applicant
was notified that his unit commander was considering whether he should be
punished under Article 15 of the UCMJ for unlawfully striking an individual
with a stool and with a closed fist.

3.  On 11 August 2000, the applicant elected not to demand a trial by court-
martial, and instead chose for the matter to be handled by his unit
commander at a closed hearing, and to present matters in defense,
mitigation, and/or extenuation.

4.  On 11 August 2000, the applicant’s unit commander, after having
considered all matters presented in defense, mitigation and/or extenuation
at a closed hearing, imposed the following punishment on the applicant:
forfeiture of $460.00 (suspended) and 14 days of restriction and extra duty
(suspended).  The unit commander directed the DA Form 2627 be filed in the
R-Fiche of the applicant’s OMPF.  The applicant elected not to appeal the
punishment.

5.  The applicant provides seven NCOERs he has received between August 1999
and March 2005.  The applicant was rated among the best by his raters on
all the reports, and his senior raters rated his overall performance as
successful and overall potential as superior.  All the reports contain very
favorable bullet comments.

6.  Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures to authorize placement of unfavorable information about Army
members in individual official personnel files; to ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
 not filed in individual official personnel files; and to ensure that the
best interests of both the Army and the Soldiers are served by authorizing
unfavorable information to be placed in and, when appropriate, removed from
official personnel files.  Paragraph 7-2 contains guidance on appeals for
removal of OMPF entries.  It states, in pertinent part, the burden of proof
to support removal of a document filed in the OMPF 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.  The regulation
provides provisions that allow the transfer of a DA Form 2627 from the
performance portion (P-Fiche) to the R-Fiche of the OMPF.  However, there
are no provisions for removing a
DA Form 2627 from the OMPF.

7.  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, MCM.  It states, in
pertinent part, that the decision whether to file a record of nonjudicial
punishment on the P-Fiche of a Soldier's OMPF rests with the imposing
commander at the time punishment is imposed.  Paragraph 3-37b(2) states, in
pertinent part, that for Soldiers, in the ranks of sergeant (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 on the P-Fiche or
R-Fiche of the OMPF will be made by the imposing commander at the time
punishment is imposed.  The filing decision of the imposing commander is
final subject to review by superior authority.

8.  Paragraph 3-43 of the military justice regulation contains guidance on
the transfer or removal of records of nonjudicial punishment (DA Form 2627)
from the OMPF.  It states, in pertinent part, 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the Article 15 in question from the R-
Fiche portion of his OMPF, and the supporting documents he submitted, was
carefully considered.  However, there is an insufficient evidentiary basis
to support granting the requested relief.
2.  The evidence of record confirms the disposition and filing of the
record of NJP he accepted on 11 August 2000, while he was serving in the
rank of SSG, was accomplished in accordance with the applicable regulation.
 All requirements of law and regulation were met and his rights were fully
protected throughout the NJP process.

3.  By regulation, 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.  Although the NCOERs provided by the
applicant attest to his outstanding performance of duty, his outstanding
performance alone does not satisfy this requirement.  Absent any evidence
meeting this regulatory standard of error or injustice, there is an
insufficient evidentiary basis to support removing the document in question
from the applicant’s OMPF.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JGG _  __SAP __  ___RGS_  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.




                                  _____James G. Gunlicks___
                                            CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20060000420                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/03/16                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  267  |123.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]