PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  29 June 2000
	DOCKET NUMBER:  AR2000042683

	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	
	Ms. Lee Tinsley		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John M. Slone		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests an Article 15, executed on 7 December 1998, be removed from his restricted fiche and Official Military Personnel Records (OMPF).

3.  The applicant states that he was not guilty of the charges and submits a statement from his commander, who imposed the Article 15, supporting his innocence.

4.  The applicant enlisted in the Army Delayed Entry Program on 16 January 1981 and entered active duty on 29 September 1981.  The applicant extended his enlistment on two separate occasions and has subsequently reenlisted five times.  His last reenlistment was on 28 January 2000 for an indefinite term of service in the 
pay grade of E-7.

5.  On 7 December 1998 the applicant was punished under Article 15, UCMJ for violation of Articles 91 (disobeying a lawful order) and 134 (adultery).

6.  On 2 December 1999, the imposing commander wrote a memorandum to this Board requesting removal of the applicant’s Article 15 from his record.  The commander states that it was later found that the victim, upon whose allegations the charges were made, had planned to entrap the applicant as she had entrapped other men in the past in an attempt to obtain a divorce from her husband.  The commander indicated that the husband’s testimony was in error, by his own admission, therefore negating the validity of the charges.

7.  On 14 February 2000, the DA Suitability Evaluation Board (DASEB) returned an advisory opinion to this Board.  The DASEB advised that the commander follow Army Regulation (AR) 27-10, paragraph 3-28, to have the Article 15 set aside if they have evidence that the punishment resulted in a “clear injustice”.  They also state that it is perfectly clear that the commander believes that such an injustice occurred and since he is a “superior authority” to the imposing commander, AR 27-10 provides him the regulatory authority to correct the error.

8.  On 1 March 2000, DA Form 2627-2 (Record of Supplementary Action Under 
Article 15, UCMJ) to set aside the Article 15 was accomplished by the Department and placed in the applicant’s OMPF.

CONCLUSIONS:

1.  Based upon the actions taken by the applicant’s imposing commander and other evidence of record, it appears that an injustice was done.

2.  The record of punishment imposed under Article 15, UCMJ, on 7 December 1998 should be expunged from the applicant’s OMPF.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case for the individual concerned be corrected by expunging the Article 15, dated 7 December 1998, and the DA Form 2627-2, dated 1 March 2000, from the applicant’s OMPF.

2.  That the application for correction of this military record, all supporting documents, proceedings of this Board, and the decision of the Secretary of the Army be returned to the Board for permanent filing to preclude the normal filing of these records from nullifying the relief granted.

BOARD VOTE:  

__JL___  __MM____  ___JS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Joann Langston      
		        CHAIRPERSON

INDEX

CASE ID	AR2000042683	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  123.07	Removal of Article 15/Set aside Action	
2.		
3.		
4.		
5.		
6.