PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            1 February 2001
	DOCKET NUMBER:   AR2000041183

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. James e. Anderholm		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, in effect, that the record of punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), the ensuring reprimand, and the witness statements which formed the basis of the UCMJ action be expunged from the restricted portion of his Official Military Personnel File (OMPF).  

3.  He states that an individual, who did not have command authority to do so, imposed the UCMJ action.  In support of his request he submits a letter from his unit commander who supports the applicant’s petition.

4.  Records available to the Board indicate that the applicant was assigned to the Security Assistance Training (SAT) Team at Fort Bragg, North Carolina with duty in Saudi Arabia.  His reassignment orders note that “all records except medical and dental will be maintained at Fort Bragg.”  

5.  In November 1999 the applicant was punished under Article 15 of the UCMJ by the Commander, U.S. Military Training Mission (USMTM) in Saudi Arabia for accessing and displaying a pornographic Internet site in violation of a general order published by the U.S. Central Command.  Included in his punishment was a written reprimand.  The record of proceedings, the written reprimand, and five statements, which served as the basis for the UCMJ action, were directed for filing in the restricted portion of the applicant’s OMPF.

6.  In support of the applicant’s petition to this Board, the Commander, U.S. Army Security Assistance Training Management Organization (USASATMO) noted that members of the SAT are part of the USASATMO at Fort Bragg.  He notes that, under the provisions of Army Regulation 12-7, the USASATMO retains UCMJ authority, and provides personnel actions and finance support to SAT team members assigned outside the United States.  

7.  The commander indicated in his statement that “due to a command and control oversight, USMTM was unaware that they did not have jurisdiction or UCMJ authority to pursue non-punitive action against [the applicant]….”  He stated that when he became aware that a member of his command might be administered UCMJ action he instructed his staff to look into the circumstances and remind the USMTM that he retained UCMJ authority for SAT team members. However, he notes that USMTM had already taken action and upon “discovering the error…the Article 15 had been recalled and destroyed.”  Unfortunately the OMPF copy was inadvertently forwarded for filing in the restricted portion of the applicant’s official record. 

8.  Army Regulation 27-10 states that unless otherwise specified, or if authority to impose nonjudicial punishment has been limited or withheld by a superior commander any commander is authorized to exercise the disciplinary powers conferred by Article 15.   The term "commander," as used in this regulation, means a commissioned or warrant officer who, by virtue of that officer's grade and assignment, exercises primary command authority over a military organization or prescribed territorial area, that under pertinent official directives is recognized as a command.  For the purpose of Article 15, military personnel are considered to be "of the command" of a commander if they are , assigned to an organization commanded by that commander or affiliated with the command (by attachment, detail, or otherwise) under conditions, either expressed or implied, that indicate that the commander of the unit to which affiliated and the commander of the unit to which they are assigned are to exercise administrative or disciplinary authority over them. 

9.  The regulation notes that to determine if an individual is "of the command " of a particular commanding officer, the commander should refer first to those written or oral orders or directives that affect the status of the individual.  If orders or directives do not expressly confer authority to administer nonjudicial punishment to the commander of the unit with which the soldier is affiliated or present (as when, for example, they contain no provision attaching the soldier "for disciplinary purposes"), consider all attendant circumstances, such as the phraseology used in the orders, where the soldier slept, ate, was paid, performed duty, the duration of the status, and other similar factors and if orders or directives include such terms as "attached for administration of military justice," or simply "attached for administration."

CONCLUSIONS:

1.  The evidence confirms that the commander imposing UCMJ action did not have the authority to impose such action.  Additionally, as indicated in the statement provided in support of the applicant’s petition, the Board notes that officials at the USMTM had recalled and destroyed the erroneous UCMJ action.  As such it would be appropriate, and in the interest of justice to expunge the documents from the applicant’s OMPF.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by expunging the November 1999 UCMJ action, the written reprimand and the five statements which formed the basis of the UCMJ action from the applicant’s OMPF.

BOARD VOTE:  

__lls___  ___bjl__  ___jea__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000041183	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010201	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.