MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         2 December 1998      
	DOCKET NUMBER:   AC98-09888

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. John H. Kern		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:  In effect, that the nonjudicial punishment under Article 15, UCMJ, that he received in 1991 be removed from his official military personnel file (OMPF).  

APPLICANT STATES:  That he has met the appropriate requirements to request that the Article 15 be removed.  Since the imposition of the punishment, his wife and he have had no further incidents and they feel that the Article 15 in his record could hinder his career.     

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

The applicant entered the Army in 1983 and has remained on continuous active duty since then.  He has served as an engineer NCO in various assignments throughout the world, to include Fort Leonard Wood, Missouri, Fort Hood, Texas, Germany, and Korea.  He has received four awards of the Good Conduct Medal, and two awards of the Army Achievement Medal, among others.  The applicant  completed the basic NCO course in 1993 and was promoted to Staff Sergeant on 1 December 1994.

The applicant’s latest NCO evaluation report, which he submits with his application, indicates that both his rater and his senior rater consider him to be an outstanding soldier with superior potential for promotion.  His supervisor has submitted a letter endorsing the applicant’s request.

On 16 October 1991 the applicant received nonjudicial punishment for choking and knocking his wife to the ground, and for disorderly conduct.  He was directed to forfeit $300.00 pay for one month, which was suspended for 180 days, and directed to perform extra duty for 14 days.  The applicant did not appeal this punishment.  His commanding officer directed that the record of punishment be filed in the restricted portion of his OMPF.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases
involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot
benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further
military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by
the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

Army Regulation 600-8-104 provided, in pertinent part, that the R (restricted) fiche is used for historical data that that may normally be improper for viewing by selection boards or career managers.  Its release is highly controlled.  The R fiche is intended to provide an unbroken historical record of an individual’s service while protecting the interests of both the soldier and the Army.
 
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence and could have argued technical matters such as the jurisdictional question.  Instead he chose to have the matter settled at nonjudicial punishment.  

2.	The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of his rights. Furthermore, the commander’s action in filing this incident on the restricted fiche tends to demonstrate that he was interested in protecting the applicant’s career.                                                                                            
3.  Careful consideration has been given to the applicant's service subsequent to the contested NJP.  However, the applicant has failed to convince this Board that the removal of the nonjudicial punishment from his restricted fiche of his OMPF would be in the best interest of justice.  The Army has an obligation to maintain a complete and accurate record of an individual’s’ service.  The maintenance of the nonjudicial punishment in the restricted fiche enables the Army to maintain that historical record without jeopardizing the individual’s career.  Therefore, there is no basis for removing the document from his official file. 

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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____rvo_  ___gdp__  ___jhk__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.