MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  21 September 2000
	DOCKET NUMBER:  AR2000037442

	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	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn Langston		Chairperson	
	Mr. Eric N. Anderson		Member	
	Mr. Curtis L. Greenway		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 he be reconsidered from promotion to Sergeant First Class (SFC), pay grade E-7.

APPLICANT STATES:  In effect, that he was not promoted because the Department of the Army (DA) Suitability Evaluation Board (DASEB) did not remove old Article 15 documents from his Official Military Personnel File (OMPF); that the DA Standby Advisory Board did not respond to his 1989 request for reconsideration for promotion to SFC; and that because of these two events, he was forced to retire from the Army as a Staff Sergeant (SSG).  The applicant provides: copies of two Noncommissioned Officer Evaluation Reports (NCOER) for the periods June 1989 to May 1990 and June 1990 to January 1991; copies of endorsements 1, 4, and 5 to a basic letter dated 17 May 1989 from the applicant requesting promotion reconsideration by a Standby Advisory Board (STAB); and a copy of a 14 May 1990 letter from a congressman acknowledging receipt of a request from the applicant for a congressional investigation of his petition for promotion.

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

That he enlisted in the Regular Army on 30 November 1970 and continued on active duty until he was honorably discharged at the Expiration of Term of Service (ETS) as a Specialist Five (SP5) on 27 August 1976.  After a break in service of about a month, he enlisted in the United States Army Reserve (USAR) on 20 September 1976 as a Specialist Four (SP4).  On 11 January 1977, he enlisted in the Regular Army as a SP4.

Between 1971 and 1979, the applicant received 8 Articles 15 as follows:

On 19 April 1971, as a Private Pay Grade E-2 (PV2), he was given an Article 15 for failure to go to his place of duty, a guard formation, for which he was punished by forfeiture of $25 and 14 days extra duty and restriction.

On 16 June 1972, as a SP4, he was given an Article 15 for failing to comply with a posted notice for which he was punished by restriction for 14 days.

On 22 May 1974, as a SP4, he was given an Article 15 for failing to go to his appointed place of duty for which he was punished by forfeiture of $50.

On 22 March 1976, as a SP5, he was given an Article 15 for failing to go to his appointed place of duty for which he was punished by forfeiture of $85 and by 7 days extra duty suspended.

On 26 April 1976, as a SP5, he was given an Article 15 for disrespectful language toward a senior noncommissioned officer and willful disobedience of a lawful order for which he was punished by forfeiture of $200 and 15 days extra duty.        

On 1 December 1977, as a SP4, he was given an Article 15 for having an ounce of marijuana in his possession for which he was punished by reduction to Private First Class (PFC) (suspended for 30 days), forfeiture of $267, and 
30 days extra duty.

On 6 March 1978, as a SP4, he was given an Article 15 for willful disobedience of a lawful order for which he was punished by reduction to PFC and forfeiture of $128.

On 13 February 1979, as a SP4, he was given an Article 15 for willful disobedience of a lawful order for which he was punished by reduction to PFC (suspended for 90 days), forfeiture of $147, and 14 days restriction.

On 9 July 1980, he was promoted to Sergeant at Fort Benning.  On 12 July 1981, while in Korea, he was promoted to SSG, with a date of rank of 10 June 1981.  There is no record of disciplinary actions on the applicant after these promotions. Between 1972 and 1979, the applicant had 3 below average evaluation reports and 7 satisfactory or above reports.  Between 1980 and 1988, the applicant had 1 below average evaluation report and 10 satisfactory or above reports.  The applicant was considered by the 1988 DA SFC Promotion Board but was not selected for promotion.

On 7 June 1988, the applicant sent a letter to the DASEB requesting that his 
8 Articles 15 be moved to his OMPF restricted microfiche since they were more than 9 years old and had served their purpose.  In a 20 October 1988 letter in response to the applicant, the DASEB denied the request.

In June 1989, the applicant sent a letter, with supporting endorsements from his chain of command, to the US Army Personnel Command (PERSCOM) requesting reconsideration for promotion to SFC by a STAB.  There is no record of a response.

On 7 April 1989, the applicant again sent a letter to the DASEB requesting that his Articles 15 be moved to his OMPF restricted microfiche.  In a 3 November 1990 letter responding to the applicant, the DASEB again denied the request.

On or about 30 January 1991, the applicant requested voluntary retirement for length of service with 20 years and 18 days active service projected at the time of the application.  His request was approved on 25 February 1991 with a retirement date of 1 May 1991.  He was so retired as a SSG.

According to Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 7-44 (Enlisted Standby Advisory Board), only soldiers who have major material errors in their OMPF when it was reviewed by a promotion board will be reconsidered for promotion by a STAB.  A material error is defined, with respect to Articles 15, as: (1) an adverse document belonging to another soldier is filed on the OMPF; (2) an Article 15 administered on or after 
1 September 1979 that was designated for file in the MPRJ only but was erroneously filed on the OMPF reviewed by the board; (3) an Article 15 punishment that was wholly set aside before 1 September 1979 and the set aside instrument was not filed on the OMPF; or (4) an Article 15 punishment that was wholly set aside on or after 1 September 1979 was filed on the OMPF when reviewed by the board.

According to Army Regulation 27-10 (Military Justice), enlisted soldiers (SGT and above) may request the transfer of a record of nonjudicial punishment (Article 15) from the performance microfiche of their OMPF to the restricted microfiche.  To support the request, the person must submit substantive evidence that the intended purpose of Article 15 has been served and that transfer of the record is in the best interest of the Army.  The DASEB reviews and evaluates the evidence submitted and obtained and make a final determination on the request.  The determination of the DASEB will affect any decision to reconsider the file by a STAB.

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 DASEB, after two reviews, did not find sufficient evidence or reason to transfer the applicant’s Articles 15 from his OMPF performance microfiche to his restricted microfiche.  It is concluded that the DASEB did not find that the 
Articles 15 had served their purpose or that they should be moved.  Considering the number, frequency, and type of violations documented by the Articles 15, the Articles 15 are an essential part of the soldier’s record that should be considered by a promotion board.  No error is found in the DASEB process or decision.

2.  The applicant’s record was properly considered by the promotion board along with the records of his peers.  Though considered, the applicant, when compared to his peers, was not selected for promotion.  No error or injustice is found in this process, the promotion board decision, or in the applicant’s OMPF record.

3.  Since the DASEB did not find reason to move the applicant’s Articles 15 to his OMPF restricted microfiche and no material error was found in the applicant’s record, there was no basis for the applicant to be reconsidered for promotion by a STAB.

4.  There is no evidence that the applicant was erroneously or unjustly forced to retire.  He voluntarily requested retirement as soon as he reached retirement eligibility with 20 years active duty.

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

__jl___  ___ea__  ___cg__  DENY APPLICATION

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

INDEX

CASE ID	AR2000037442	
SUFFIX		
RECON		
DATE BOARDED	20000921	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.131	Promotion	
2.		
3.		
4.		
5.		
6.