MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 April 1999
	DOCKET NUMBER:   AC98-10140
                                              AR1999014631
	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Charles M. Fowler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Gary F. Geraets		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:  Removal of DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 1 May 1998 from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that his request is supported by the commander (a captain) who imposed the nonjudical punishment (NJP).

In support of his request he submits a Memorandum For Record, dated
17 August 1998, from the above-mentioned commander who states that on 
1 May 1998 he administered NJP to the applicant for violation of Article 107, UCMJ, by falsifying an official document and for violation of Article 134, UCMJ, by unlawful solicitation.  He states that the applicant committed these acts by failing to properly prepare the necessary documents for an overseas trip to his native country of Nigeria.

The commander continues by stating that it was his intention to administer a summarized NJP, using DA Form 2627-1; however, this did not occur, and he unintentionally administered NJP utilizing DA Form 2627.  It is his intention now to correct the error as expeditiously as possible. 

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

At the time he submitted his application he was serving on active duty in pay grade E-6.

On 19 August 1991 when the applicant was a sergeant E-5, he received NJP for violation of Article 123, UCMJ, in that with intent to defraud, he “uttered and signed a certain writing in the following words and figures – DD Form 362, Statement of charges for Government Property lost, Damaged or Destroyed, in the dollar amount of $262.00, a writing which would, if genuine, apparently operate to the legal harm of another.”  That NJP was directed for filing in the Restricted section of his OMPF.  
 
On 1 May 1998 as a staff sergeant (E-6), at Fort Bragg, North Carolina, the applicant received the subject NJP  for violation of Article 107, UCMJ, by falsifying an official document and for violation of Article 134, UCMJ, by unlawful solicitation.  The record of NJP shows that on or about 23 December 1997, at the Nigerian Embassy, Washington, D.C., with intent to deceive, the applicant solicited and had a private first class sign a false document, in that the private first class did not have the authority to sign for the responsible staff sergeant.  The punishment consisted of forfeiture of $430.00 pay, suspended, extra duty for 14 days, and restriction for 14 days.  The NJP was directed for filing in the applicant’s Restricted fiche.  The applicant did not appeal the punishment.

On 9 July 1998 the U.S. Army Enlisted Records and Evaluation Center (EREC) informed the applicant’s command that the NJP dated 1 May 1998 had been submitted to that center for filing in the applicant’s OMPF.  However, a review of his OMPF revealed that he already had one NJP received while serving in the rank of sergeant filed in the Restricted section of his OMPF.  Therefore, in accordance with Army Regulation 27-10, this NJP (1 May 1998) was filed in the Performance Section of the applicant’s OMPF.  In addition, the copy of the 
DA Form 2627 that was placed in the unit files would be moved to the applicant’s Military Personnel Records Jacket (MPRJ).

During the processing of this case, the staff of the Board solicited an advisory opinion from the Department of the Army Suitability Evaluation Board (DASEB). The DASEB reviewed the applicant’s request and recommended denial of his application.  In its decision summary the DASEB concluded that the imposing commander’s recent action is reflective of retrospective thinking or second thoughts.  The DASEB pointed to the fact that the commander’s original imposition of monetary forfeiture was in excess of what is appropriate for summarized punishment.  Also, filing the action in the Restricted fiche would have been appropriate, had it not been for the applicant’s previous NJP as a sergeant.  Consequently, any subsequent NJP as a sergeant or higher is automatically filed in the Performance section of the OMPF and any local filing is elevated to the MPRJ.

The applicant was forwarded a copy of the DASEB advisory opinion, to include its decision summary, for comment on 5 January 1999.  The response received came from the Commander (a lieutenant colonel), 1st Special Warfare Training Group (Airborne), United States Army John F. Kennedy Special Warfare Center and School, Fort Bragg, North Carolina.  

The commander states that there is no doubt that the applicant committed the acts.  However, what the UCMJ actions fail to illustrate or covey is the intent of the command, which was to punish the applicant using summarized Article 15 procedures.  The commander states that he, himself, failed to properly supervise and follow up on the actions of an inexperienced company commander who believed that his actions were correct and that the use of a wrong form did not matter, since it was not going outside of unit control.  In addition, the commander states that if proper procedures had been followed he would have granted an appeal favorably.  He states that the honest error of the company commander should not be used or held against the applicant, and he requests that relief be granted. 

Army Regulation 27-10 (Military Justice), chapter 3, prescribes the policies, procedures, limitations, and requirements for the administration of nonjudicial punishment and implements the Manual for Courts-Martial.  Paragraph 3-6 of the regulation states, in pertinent part, that if a record of NJP has been designated for filing in a soldier’s Restricted fiche, the soldier’s OMPF will be reviewed to determine if the Restricted fiche contains a previous record NJP.  In those cases where a previous DA Form 2627 which has not been wholly set aside, has been filed in the Restricted fiche and the soldier, prior to that punishment, was in the grade of sergeant or higher, the present DA Form 2627 will be filed in the Performance fiche.

The regulation also provides that a commander, after a preliminary inquiry into an alleged offense by an enlisted soldier may use summarized proceedings if it is determined that should punishment be found to be appropriate, it should not exceed (1) extra duties for 14 days; (2) restriction for 14 days; (3) oral reprimand or admonition; (4) or any combination of the foregoing.  Also, the DA Form 
2627-1 (Summarized Record of Proceedings under Article 15, UCMJ) will be used to record the proceedings.  When used, the form will be maintained locally in nonjudicial punishment files and destroyed at the end of 2 years from the date of imposition or upon the soldier’s transfer from the unit, whichever occurs first.  

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. The subject NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was not disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.

2.  The NJP, which was directed for filing in the Restricted section of the applicant’s OMPF, was properly diverted to and filed in the Performance section of his OMPF when it was discovered that another NJP he had earlier received as an NCO was already filed there.  

3.  The Board gives due consideration to the applicant’s commanders’ statements.  However, when consideration is given to the forfeiture of $430.00 pay imposed by the imposing commander, the Board is not convinced that they only intended to punish him using summarized proceedings.  To accept their statements, the Board would have to believe not only that the wrong form was used but also that the imposing commander did not consult Army Regulation
27-10, which clearly does not authorize a forfeiture of pay as punishment in a summarized proceedings.    

4.  Also, the Board is of the opinion that the applicant’s record of two NJP’s as an NCO which implicate him in falsifying documents with the intent to defraud and/or deceive brings into question his integrity and trustworthiness.  Therefore, the subject NJP should not be completely removed from his OMPF.  

5.  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

____X___  ____X___  ___X____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC9810140/AR1999014631	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990421	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.01	
2.		
3.		
4.		
5.		
6.