MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             16 December 1999
	DOCKET NUMBER:    AR1999018040

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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, removal of the proceedings of nonjudicial punishment (NJP), dated 9 February 1988, from the performance fiche of his official military personnel file (OMPF).

APPLICANT STATES:  In effect, that the NJP was dismissed and he was found not guilty of the charge.  In addition, that it has been ten years and filing status should be expired resulting in the removal.  The applicant concludes that this would serve his best interests as relates to his competing for promotion on upcoming boards.  

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

That he served in the Regular Army for almost 11 years from 4 August 1991 until his release from active duty, in the rank of sergeant/E-5, under the provisions of the Fiscal Year 1992 Enlisted Voluntary Transition Program, on 28 July 1992.  

On 29 July 1992, the applicant enlisted in the USAR in the Selected Reserve and in March 1997 he entered an Active/Guard Reserve (AGR) status where he is currently serving at this time.

On 9 February 1988, NJP was imposed against the applicant for disorderly conduct.  The applicant’s unit commander initially contemplated imposing the NJP based on a charge of drunk driving; however, in a closed hearing he found the applicant not guilty of that charge.  The unit commander did conclude that the applicant was guilty of disorderly conduct. 

The imposing commander on the NJP directed that the record of proceeding of NJP (DA Form 2627) be filed on the performance fiche of the applicant’s OMPF, and the applicant accepted the results of the closed hearing and elected not to appeal the punishment.  

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM.  It states, in pertinent part, that the decision whether to file a record of NJP on the performance fiche of a soldier's OMPF rests with the imposing commander at the time punishment was imposed and will be recorded in item 5 of the DA Form 2627.

Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to on the placement of unfavorable information about Army members in individual official personnel files.  Chapter 7, provides the guidance whereby a person may seek removal of unfavorable information from the OMPF.  It states, in pertinent part, that appeals and petitions for removal of unfavorable information should be directed to the DASEB. 

There is no record that the applicant ever appealed the filing determination of the imposing commander to the Department of the Army Suitability Evaluation Board (DASEB) for either removal of the NJP from his OMPF or transfer of the document to the restricted fiche.  

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 noted the applicant’s contention that he was found not guilty of the charge and that it has been ten years since the document was filed.  However, the Board found these factors were not sufficiently mitigating to warrant relief.  

2.  The Board noted the applicant’s contention that he was found not guilty of the charge.  The evidence of record does show that he was in fact found not guilty of a drunk driving charge.  This determination was made by the unit commander, in a closed hearing held at the time the NJP was imposed.  At the same time, the imposing commander did find the applicant guilty of disorderly conduct and on that basis made a determination to file the NJP in the performance portion of the OMPF.  Therefore, this factor provides no basis for relief.

3.  The record of proceedings of NJP was properly filed on the performance fiche of the applicant’s OMPF, in accordance with applicable regulations.  The Army has an interest in maintaining such documents, and the applicant has failed to show sufficient reason why it should not remain a matter of record.

4.  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.  

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

___sk ___  ___fkm__  __rvo ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018040	
SUFFIX		
RECON		
DATE BOARDED	1999/12/16	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  227	112.0500	
2.		
3.		
4.		
5.		
6.