MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            22 October 1998  
	DOCKET NUMBER:   AC98-11175

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Fred K. McCoy		Member	
	Ms. Shirley L. Powell		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:  The removal of a record of nonjudicial punishment (NJP) and all associated documents from the restricted fiche of his Official Military Personnel File (OMPF).

APPLICANT STATES:  That the presence of the record of NJP in his OMPF is unjust because it is over 10 years old and was intended at that time to correct a deficiency, not to ruin his career.  He states that he has learned from his neglect of proper procedures in 1987 - 1988, that he accepted full responsibility for his actions at that time, and that he has endeavored to put it behind him.  He goes on to state that the presence of the record of NJP on the restricted fiche of his OMPF has resulted in his being removed from the lieutenant colonel (LTC) Command Selection List despite his exemplary record over the past 10 years.  He further states that he was selected below the zone for promotion to the ranks of major and LTC and was selected on his first look for battalion command.  He continues by stating that it is clear that the NJP has served its purpose and that its continued presence is clearly an injustice.  He also states that at the time the record of NJP was placed on his restricted fiche in 1988 he was assured by the general officer that imposed the punishment that it would not affect his career.  Furthermore, it was not until he was removed from the command list on 13 November 1997 that he became aware of the impact and injustice.  In support of his application he submits a copy of the sworn statement he submitted on 20 May 1988 regarding the incident, a statement of support from his present commanding general, and a statement of support from the imposing general officer.

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

The applicant was commissioned as a Regular Army second lieutenant upon graduation from West Point on 26 May 1982.  

On 20 May 1988 while attending the Combined Arms School 3 Course at Fort Leavenworth, Kansas, the applicant submitted a sworn statement in which he admitted, in effect, that his wife lived with him in his bachelor officers quarters (BOQ) during his tour in Korea and while he was receiving his basic allowance for quarters (BAQ) and family separation allowance (FSA).  He also indicated that he made an attempt to stop his allowances but it was not until he prepared his taxes on 12 April 1988 that he realized that his allowances had not been stopped (He departed Korea on 13 April 1988).  He further indicated that he had looked at off-post family quarters recommended by family housing but they were inadequate and over-priced so his wife continued to reside with him in his BOQ until he departed Korea.  He indicated that his wife also had a permanent ration card and that he knew it was illegal for him to draw BAQ and FSA allowances while his wife was residing in government quarters.  For that reason he submitted a pay inquiry when he arrived at Fort Leavenworth requesting that the overpayment of allowances be collected.

On 24 August 1988, while stationed at Fort Ord, California,  NJP was imposed against the applicant by a general officer (a major general) for stealing $4,804.00 more or less, of government property by wrongfully receiving BAQ and FSA when he was not entitled to either by virtue of the fact that his wife lived with him in his BOQ from 15 July 1987 to 13 April 1988, an act for which he knew was wrong and constituted conduct unbecoming an officer.  His punishment consisted of a forfeiture of $500.00 for 2 months.  He did not appeal the punishment and the imposing officer directed that the record of NJP (DA Form 2627 be filed on the restricted fiche of his OMPF.

The applicant was promoted to the rank of LTC on 1 August 1997.

On 17 March 1998 the Total Army Personnel Command (PERSCOM) notified the applicant that he had been recommended for command by the command selection board that recessed on 15 November 1996 and based on the unanimous recommendations of the command review board and a final decision by the Chief of Staff, Army, he was being removed from the command list.

The supporting statement from his present commander ( a major general) strongly supports the applicant’s request for removal of the adverse information from his OMPF.  The commander contends that the applicant is technically and tactically the finest LTC he has ever met as well as the hardest working.  He goes on to state that there is no purpose to be served in allowing this information to remain in the applicant’s file and that now is the time to draw the line between information relevant to character and ability, and that which is stale, outdated, and misleading as it relates to capability and professionalism.

The supporting statement from the imposing officer (now a retired lieutenant general) also strongly supports the applicant’s request.  He states that at the time he imposed the NJP, he was advised to do so by his staff judge advocate based on the applicant’s negligence associated with his living with his new spouse in government quarters and continuing to draw allowances while serving on an unaccompanied tour in Korea.  He further states that he directed that the record of NJP be filed on the applicant’s restricted fiche and assured the applicant that it would not affect his career.  However, the Chief of Staff of the Army subsequently implemented a policy requiring review of the restricted fiche after selection by the LTC and Colonel Command Selection Boards.  Consequently, the applicant was removed from the LTC Command Selection List, a result he (the imposing officer) never intended.  He further states that the applicant’s exemplary service over the past 10 years, to include his heroic service in combat, clearly shows that the intended purpose of the NJP has been satisfied and contends that it would be a severe injustice to allow the adverse information to remain in his records. 

Army Regulation 624-100 provides the policies and procedures for the conduct of officer selection boards.  It states, in pertinent part, that officers eligible for consideration by selection boards may write to the board to provide documents and information calling attention to any matter concerning themselves that they consider important to their consideration.

Army Regulation 27-10, in effect at the time, states in pertinent part, that the decision to file DA Forms 2627 (Record of NJP) on the performance or the restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander was final and was to be indicated in item 5, DA Form 2627.

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.  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.  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 violation of any of the applicant’s rights.

3.  Likewise, the record of NJP is properly filed on the restricted fiche of his OMPF in accordance with applicable regulations.

4.  The Army has an interest in maintaining certain records and, the applicant has failed to show why the record of NJP should not remain a matter of record.

5.  Furthermore, knowing that the Army has an interest in maintaining such records, the Board is of the opinion that selection boards who are authorized to review the restricted fiche of an OMPF are in the best position to determine if the offense is of such a nature as to warrant such actions as removal from selection lists, when compared to the overall record and the selection criteria used for a particular board.

6.  The Board also notes that the mere presence of adverse/derogatory information on the restricted fiche of the OMPF is in itself not automatically grounds for removal from a selection list.  Only after the information has been reviewed by the selection board and it has been determined that removal is justified, will such action be taken.

7.  Inasmuch as the applicant has always had the option to submit a letter to the selection boards to explain the presence of the NJP in his restricted fiche and to present his contentions regarding the issue of intent served, the Board is inclined to believe that given the fact that selection for command is very competitive and a very serious matter, that the selection and command review boards are in the best position to make such a decision and that removing information from the restricted fiche would amount to circumventing established Department policy as well as providing an unfair advantage to the applicant that others in the same situation are not afforded. 

8.  Furthermore, the removal of the record of NJP would not prevent the post-screening selection process from seeing that the applicant had been titled by the Criminal Investigation Division (CID) and all of the information revealed on the record of NJP would still be available for the boards to review.

9.  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

__jh ____  __fkm___  __slp____  DENY APPLICATION

						Loren G. Harrell
						Director