MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            22 August 2000                  
	DOCKET NUMBER:   AR2000035663

	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. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 a record of punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) be expunged from his records.

APPLICANT STATES:  The applicant makes no statement in support of his request but submits a copy of his “final summary” to the non-judicial punishment (NJP) and a copy of a transmittal document which contains the typed statement “The issuing Commanding Officer…request[s] that this Article 15 be removed from the restricted fiche after one year” in the remarks section.

EVIDENCE OF RECORD:  Attempts to secure copies of the applicant’s military personnel file were not successful.  Information contained herein was reconstructed from the documents provided by the applicant.

The applicant was serving in pay grade E-7 on 9 March 1998 when he was punished under Article 15 of the UCMJ for having “sexual intercourse with [another soldier], a woman not [his] wife.”  His punishment included forfeiture of $1,197.00 per month for two months.  The punishment was suspended.  

The applicant submitted a “final summary” on 17 March 1998 asking the issuing officer, a colonel, to consider the applicant’s years of service, performance, and circumstances, and asked that the NJP action be filed in his restricted fiche.”  The issuing officer, on 17 March 1998, directed that the document be filed on the restricted portion of the applicant’s official military personnel file (OMPF).

A 20 March 1998 DA Form 200 (Transmittal Record), addressed to the U.S. Army Reserve Personnel Center, notes in block 16 (special instructions) that the “Field Grade Article 15 [is] to be file in the Restricted Fiche…” and block 18 (remarks) contains the statement “The issuing Commanding Officer…request[s] that this Article 15 be removed from the restricted fiche after one year.”  The unit personnel center’s noncommissioned officer in charge (NCOIC), a staff sergeant, authenticated the DA Form 200.

Army Regulation 640-10 states that the restricted portion of the OMPF is for historical data that may normally be improper for viewing by selection boards or career managers.  Documents on this fiche are those that must be permanently kept to maintain an unbroken, historical record of a member’s service, conduct, duty performance, and evaluation periods.  Once placed in the OMPF, the document becomes a permanent part of that file.  It will not be removed from a fiche or moved to another part of the OMPF unless directed by this Board, the Department o the Army Suitability Evaluation Board, the Chief, Appeals and Corrections Branch, or the OMPF custodian when documents have been improperly filed.

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.  Although copies of the applicant’s OMPF were not available to the Board the evidence confirms that the NJP action was directed for filing on the restricted fiche of the applicant’s OMPF.  There is no indication on the record of nonjudicial punishment that the imposing officer intended that the action be filed for only one year on the restricted fiche.  The statement in the remark’s section of the DA Form 200 is not supported by any evidence nor is the source of the statement confirmed.

2.  The Board also notes that it would not have been within the imposing officer’s authority to remove the NJP action from the applicant’s restricted fiche after one year.

3.  The record of NJP is properly filed and as such no error or injustice exists. The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

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.  The applicant has failed to submit evidence that would satisfy that requirement.

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

__ew____  ___mvt__  ___kwl__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000035663	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000822	
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.	126.00	
2.		
3.		
4.		
5.		
6.