MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                         29 August 2000
	DOCKET NUMBER:                AR2000035983

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Roger Able		Member	
	Mr. Charles Gainor		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:  That his nonjudicial punishment (NJP) dated, 15 March 1988 be removed from his official military personnel file (OMPF).

APPLICANT STATES:  That in March 1989 his NJP was overturned due to
mitigating circumstances and that he was issued a letter of reprimand (LOR).  He also states that he was discharged due to his NJP under the qualitative management program (QMP).  In support of his application he submits a copy of is DD Form 214, a copy of his DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), a copy of his DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) and a copy of his LOR with attachments.

EVIDENCE OF RECORD:  The applicant's military records show he entered 
active duty on 6 November 1978 as an attack helicopter technician and continued to serve through a series of continuous reenlistments until he was honorably discharged on 15 February 1992 under the provisions of Army Regulation 635-200, paragraph 16-8 due to reduction in authorized strength.

On 11 March 1988, an administrative LOR was tendered to the applicant by the commanding general (CG) of the 3rd Infantry Division for driving under the influence (DUI) of alcohol on 28 February 1988.  This LOR was imposed as an administrative measure and not as punishment under Article 15 (UCMJ).  The CG stated that it was his intent to direct filing of this letter in either the performance (P) fiche of the OMPF or the local Military Personnel Records Jacket (MPRJ).  He also stated that he would make his final determination in this regard after considering the applicant’s response and that of his chain of command.  The applicant acknowledged receipt of the LOR and understood that he had 3 days to submit statements or matters in his own behalf.  He elected not to submit statements in his own behalf.  

On 15 March 1988, NJP was imposed against the applicant for driving while intoxicated (DWI) on 28 February 1988.  His punishment consisted of a reduction to the pay grade of E-5 (suspended) and a forfeiture of pay.

The applicant’s company commander, battalion commander and brigade commander indorsed the applicant’s LOR recommending that the LOR be filed in the applicant’s MPRJ.  On 4 May 1988, the CG, after reviewing the endorsements, recommended that the applicant’s LOR be filed on his OMPF in accordance with Army Regulation 600-37, paragraph 3-4.

On 13 July 1989 a DA Form 2627-2 was prepared and signed by the successor in command to the officer who tendered the NJP to the applicant.  This supplemental action reduced the punishment imposed by the article 15 to
a forfeiture of pay and oral reprimand based on mitigating circumstances.

The applicant’s performance (P) fiche failed to show his NJP, dated 15 March 1988. 

The applicant’s restricted fiche is not available for review by this Board.

Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board,
Army Appeals Board, the Chief of Appeals and Corrections Branch of the Total Army Personnel Command or the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  
Chapter 3 covers unfavorable information in official personnel files.  Paragraph
3-4 applies to filing of nonpunitive administrative letter of reprimands (LOR) or censure in official personnel files.  Paragraph 3-4(b) provides for filing in the
OMPF.  It states that a letter, regardless of the issuing authority my be filed in the OMPF maintained by the U.S. Total Army Personnel Command (PERSCOM), the Army Reserve Personnel Command (ARPERSCOM), or the proper State Adjutant General (for Army National Guard Personnel) only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed on the performance portion (P-fiche).  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.

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 Board noted the applicant’s contention that his NJP was overturned due to mitigating circumstances and that he was issued a LOR; however, the successor in command to the officer who tendered the NJP only reduced the punishment imposed by the article 15 to a forfeiture of pay and an oral reprimand based on mitigating circumstances.

2.  The 11 March 1988 administrative LOR was properly imposed as an administrative measure and was properly filed on the performance fiche of his
OMPF in accordance with applicable regulations.

3.  The Board noted the applicant’s contention that he was discharged due to QMP.  While the QMP may have been based in part on the LOR, the LOR and allied documents are not considered part of the QMP action itself and, therefore, properly remain filed on the performance fiche of his OMPF.  

4.  In order to justify correction of a military record the applicant must show to the
satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this 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:

JDM____  RA______  CG_____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000035983	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000829	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19920215	
DISCHARGE AUTHORITY	AR 635-200, C 16.  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  281		
2.		
3.		
4.		
5.		
6.