MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           11 February 1999   
	DOCKET NUMBER:   AR1998012693

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

	Mr. Loren G. Harrell		Director	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Carol Jo Suiter		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his Article 15 (correctly known as nonjudicial punishment (NJP)) be removed from his military records.  

APPLICANT STATES:  In effect, that the NJP is causing problems in his civilian career.  He contends that it has been 18 years since his NJP, he paid for his mistake, and does not understand why it should still be in his file.   

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted on 10 December 1979 for a period of 3 years and remained on active duty through continuous reenlistments.  He was promoted to the pay grade of
E-7 on 1 July 1994, trained as an unit supply specialist and served in Germany, Hawaii, Southwest Asia and Korea.
 
On 26 August 1980, while assigned to Fort Jackson, South Carolina, NJP was imposed against the applicant for committing sodomy with a married woman.  His punishment consisted of a reduction to E-1, a forfeiture of pay and 30 days of extra duty.

On 21 November 1994 the applicant submitted an application for voluntary retirement.  His request was approved on 22 February 1995.

Accordingly, he was honorably retired on 31 May 1995 under the provisions of Army Regulation 635-200, chapter 12, for voluntary early retirement and placed on the Retired list on 1 June 1995.  He had served 15 years, 5 months, and
21 days of total active service.   

Army Regulation 27-10 (Military Justice), in pertinent part, states the applicable policies for nonjudicial punishment.  The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627.  The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a soldier’s record.     

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contentions.  However, 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 the aforementioned requirement.

2.  In all likelihood the presence of the record of NJP in his Official Military Personnel File is not the actual problem.  More than likely there was an investigation conducted by law enforcement authorities which caused the applicant to be “titled” for the offense in which he was being investigated and which resulted in the imposition of NJP.  Consequently, this information is probably reflected on records maintained by law enforcement officials and is appropriate unless it can be determined that a case of mistaken identity exists.

3.  Army Regulation 27-10 and Army Regulation 15-185 (Policy and Procedures for Applying to the Army Board for Correction of Military Records) specifically precludes the removal of a valid DA Form 2627 from a soldier’s record, by the Army Board for Correction of Military Records, without compelling evidence.  The Board finds no compelling evidence to support removal of the applicant’s NJP; therefore, this record will not be expunged.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ____cjs_  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___inw__  ________  ____vcb_  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12559/AR1998012693	
SUFFIX		
RECON	 	
DATE BOARDED	1999/02/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  134.000		
2.		
3.		
4.		
5.		
6.