PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           31 May 2000                   
	DOCKET NUMBER:   AR2000037186

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelly		Member	
	Mr. John P. Infante		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the DA Form 4833, Commander’s Report of Disciplinary or Administrative Action dated 28 June 1998 be corrected.

3.  The applicant states that the DA Form 4833 shows that he received an Article 15 in October 1997 for making a false official statement and for false swearing.  This information is incorrect.  He received an Article 15 in August 1997 for wrongful use of marijuana and nothing else.

4.  The applicant’s military records show that he enlisted in the Regular Army on 1 April 1992.  

5.  On 4 August 1997, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongful use of marijuana.  His punishment was a reduction to pay grade E-1, a forfeiture of $450.00 pay for       2 months, 45 days restriction and 45 days extra duty.

6.  On 16 October 1997, a U. S. Army Criminal Investigation Command (CID) Report of Investigation found that an investigation established probable cause to believe the applicant committed the offenses of false swearing and false official statement when he wrecked his car and later reported it stolen.  As a result, a DA Form 4833 was initiated and forwarded to the applicant’s commander with a suspense date for completion of 15 December 1997.  The commander did not complete it until 28 June 1998 and then noted that the applicant received an Article 15 in October 1997; that he was found guilty; that his punishment was a forfeiture of one-half month’s pay for 2 months, a reduction to pay grade E-1,     45 days restriction and 45 days extra duty; and that he was administratively discharged for a drug offense on 8 December 1997.

7.  On or about 13 November 1997, elimination action under the provisions of Army Regulation 635-200, chapter 14 for misconduct, commission of a serious offense, use of an illegal drug was initiated on the applicant.  In his recommendation, the applicant’s commander noted that there was no evidence of prior court-martial convictions and no evidence of previous nonjudicial punishment.

8.  The recommendation was approved by the appropriate authority and on         8 December 1997 the applicant was discharged, with a general discharge under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14 for misconduct.

9.  Army Regulation 190-45 prescribes policies, procedures and responsibilities on the preparation, use and disposition of military police reports and reports related to law enforcement activities.  Paragraph 4.3 states that DA Form 4833 is used to record action taken against offenders by commanders.  It is prepared by the provost marshal, who distributes it to commanders with an appropriate suspense.  Commanders will complete the report of disciplinary or administrative action taken within the prescribed suspense date and return the original and one copy to the provost marshal.  Such information is intended to ensure that Army records are accurate and complete with the latest offender disposition.

CONCLUSIONS:

1.  The evidence of record does not show that the applicant received an Article 15 in October 1997 for the offenses, false official statement and false swearing, listed on the DA Form 4833 dated 28 June 1998.  

2.  The DA Form 4833 shows that the applicant received an Article 15 in October 1997 and the punishment listed is the same as that he received with his Article 15 of 4 August 1997.  Since he had been reduced to E-1 as part of the 4 August 1997 punishment and he had not been advanced after that reduction, it is not possible that any Article 15 given in October 1997 could have imposed that same punishment.  The Board concludes that the commander completed the DA Form 4833 incorrectly, entering data from the 4 August 1997 Article 15 using the date of the CID Report of Investigation.

3.  The other information noted on the DA Form 4833 is correct.  The applicant was administratively discharged on 8 December 1997 for a drug offense.  The Board concludes that this information alone would have been sufficient to complete the DA Form 4833 in addition to being a reasonable explanation as to why no additional punishment was imposed for the stated offenses.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  deleting, in the Action Taken block of the DA Form 4833 dated 28 June 1998, the “X” and the entry “Oct 97;”

     b.  deleting, in the Judicial Findings block of the DA Form 4833 dated 28 June 1998, the “X;” and

     c.  deleting, in the Resultant Sentences, Punishments, or Administrative Action block of the DA Form 4833 dated 28 June 1998, all entries in items B and C.

2.  That the corrected DA Form 4833 dated 28 June 1998 be filed in all appropriate official military records, to include those at the U. S. Army Crime Records Center, as the official document of record replacing any uncorrected copies now filed.

3.  That a copy of the corrected DA Form 4833 dated 28 June 1998 be forwarded to the applicant.

BOARD VOTE:  

__jev___  __sk____  __jpi___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			James E. Vick
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000037186	
SUFFIX		
RECON		
DATE BOARDED	20000531	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.