MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 January 2001
	DOCKET NUMBER:   AR2000041871

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Lester Echols 		Member	
	Ms. Karen A. Heinz 		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 the nonjudicial punishment (NJP) that he accepted under Article 15, Uniform Code of Military Justice, be voided and his rank and pay be restored.  He also requests that his Army Good Conduct Medal (AGCM) and his security clearance be restored.

APPLICANT STATES:  That he "was given" an unjust NJP for failing to obey a lawful order.  He contends that the order was unlawful and unjust, and was given solely for the purpose of harassment and discrimination against him due to his Panamanian heritage.  In support of his application, he provides documentation listed at the end of this memorandum.

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

He was a sergeant (SGT/E-5) serving on active duty in Panama, having been assigned there on 16 November 1996.  His DEROS (date eligible for return from overseas) was established as 11 November 1999.

On 11 December 1996, the applicant married a Panamanian citizen after first obtaining the requisite command approval.  Concurrent with his application for permission to marry a foreign national, he sought command sponsorship in order to obtain an identification (ID) card for his wife and government quarters.  His request for command sponsorship was approved on 20 December 1996.

In early 1997, the applicant's command sponsorship of his wife was rescinded.  The applicant does not provide, nor does the record reflect, the reason for this action; however, on 19 February 1997, the applicant's first sergeant informed him of this action and ordered him to return his wife's ID card.  He was reminded to return his wife's ID card twice more, on 21 February and 3 April 1997, but he apparently ignored the order.

On 16 May 1997, the applicant's first sergeant requested that the applicant be offered NJP for willfully disobeying his lawful order to return his wife's ID card to military authorities.  In that request, the first sergeant explained that he had informed the applicant that he could "request an exception to policy . . . if he desired to remain in housing and obtain a command sponsor privilege card" and the command would support him, but that he must first comply with the order to return his wife's ID card.

On 24 May 1997, the applicant, after having been advised of his rights, elected to accept NJP.  He was found guilty of the offense and punished by reduction to specialist (SPC/E-4), forfeiture of $677per month for 2 months (suspended if not vacated by 11 November 1997), and 45 days of extra duty.  The NJP was reviewed by for legal sufficiency and approved on 29 May 1997.  It was filed in the performance fiche on the applicant's Official Military Personnel File (OMPF).

The applicant's OMPF contains Permanent Orders 109-31, Headquarters, United States Army South, dated 19 April 1999, awarding the applicant the AGCM for the period August 1995 to August 1998.  There is nothing in the record to show that the order was revoked and the award withdrawn.

There is nothing in the applicant's submission or his OPMF concerning his security clearance.  However, it is not uncommon for a security clearance to be withdrawn because of soldier misconduct.  Such withdrawal is situational and the clearance may be reinstated at a later time based upon need.

Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, 1984.  As such, the regulation also governs the administration of NJP.  It states, in pertinent part, the authority to impose nonjudicial punishment charges a commander with the responsibility of exercising his or her authority in an absolutely fair and judicious manner.  The commander of the alleged offender must ensure that the matter is investigated promptly and adequately.  The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident.  The investigation should cover whether an offense was committed, whether the soldier was involved, and the character and military record of the soldier.

The regulation further stipulates that a soldier has no right to legal counsel at the NJP proceedings.  The soldier may retain civilian counsel to act as the soldier's spokesperson at no cost to the Government.  However, because the proceedings are not adversary in nature, neither the soldier nor spokesperson (including any attorney present on behalf of the soldier) may examine or cross-examine witnesses, unless permitted by the imposing commander.  The soldier or spokesperson may, however, indicate to the imposing commander relevant issues or questions they wish to explore or ask.

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 applicant's supporting documentation alludes to various investigations and official responses to congressional queries, but he does not provide these documents for the Board's examination, nor are they available in the applicant's official record.  The Board presumes that these documents explained the reason for the withdrawal of command sponsorship and, thus, validated the order for him to return his wife's ID card.

2.  The Board believes the NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.

3.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a non-adversarial, informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment, the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at nonjudicial punishment.  He was entitled to have a spokesperson present to help articulate relevant issues, but not to cross examine witnesses.

4.  The applicant was not denied the AGCM for the 3-year period he served in Panama; the order for that award is in his OMPF.

5.  There is no evidence in the record, nor has the applicant provided any, to show that he had a security clearance or that the clearance was withdrawn.  If for the sake of argument, the applicant did lose his security clearance as a result of the imposition of NJP, such action would have been completely appropriate.  It also would not prohibit him from regaining his clearance at a later date provided he was serving in a position requiring such a clearance.

6.  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 this requirement.

7.  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

__jh____  __le _____  __kah ___  DENY APPLICATION

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

LIST OF
SUPPORTING DOCUMENTATION

1.	Personal letter to the Board, dated 4 May 2000.
2.	Assignment orders to Panama, dated 5 Nov 96.
3.	Promotion orders to Sergeant, dated 19 Nov 96.
4.	Happy birthday wishes to applicant, dated 30 Jan 97.
5.	Translation - Record of Civil Matrimony, dated 11 Dec 96.
6.	Undated Adjutant General certification of single status of applicant.
7.	DA Form 2029-R, Application for Authorization to Marry Outside of United States (7 pages), dated 19 Nov 96.
8.	20 Dec 96 memorandum approving command sponsorship.
9.	Copy of wife's ID card.
10.	Copy of DA Form 5888-R, Family Member Deployment Screening Sheet, dated 19 Dec 96.
11.	Copy of DA Form 7246-R, Exceptional Family Member program Screening Questionnaire, dated 18 Dec 96, with 3 medical records for wife.
12.	Copy of Inspector General Action Request, dated 5 May 97.
13.	Copy of 10 Oct 97 statement made by a sergeant first class.
14.	Copy of 21 Jul 97 statement by a civilian female who was accompanied to the post office by applicant.
15.	Copy of 13 May 1997 letter from Hon James C. Greenwood, MC, to applicant.
16.	Copy of 3-page, undated letter from applicant's wife to Hon James C. Greenwood, MC.
17.	Copy of an OCLL fax header, dated 16 May 97, forwarding Hon James C. Greenwood's inquiry to USARSO
18.	Copy of 2 Jun 97 memo from USARSO to Fort Clayton AG with 10 questions to be answered relative to congressional inquiry.
19.	Copy of DA Form 4856, General Counseling Form, dated 16 May 97.
20.	Copy of local form, dated 16 May 97, requesting NJP action against applicant.
21.	Copy of subject NJP.
22.	Copy of 15 May 97 memo for commander requesting NJP action against applicant.
23.	Second copy of Item 19.
24.	Two-page letter, dated 13 Jun 97, from Panamanian attorney to Hon James C. Greenwood.
25.	Copy of 31 May 97 memo of character reference from applicant's OIC.
26.	Copy of SOCO-GP 1921, Monthly Counseling Form, dated 1 Apr 97.
27.	Copy of front page of DA Form 4856, undated, stating applicant is doing well.
28.	Second copy of Item 8.
29.	Copy of 13 Nov 97 memo from USARSO to applicant's commander, subj:  Adjustment of DEROS and Awarding of With Dependent Tour.
30.	Copy of 9 Dec 97 memo from Legal Assistance to applicant's commander, subj:  Article 15.
31.	Copy of 11 May 98 letter to Chief, OCLL, from Hon James C. Greenwood.
32.	Copy of 22 Jan 98 letter to USARSO commander from Hon James. C. Greenwood.
33.	Copy of 16-page letter, dated 6 Oct 97, from applicant to Hon James C. Greenwood.
34.	Copy of 7-page letter, dated 18 Jun 98, from applicant to Hon James C. Greenwood.
35.	Copy of page 1 of X-page letter, dated 6 Oct 97, from applicant to staffer of Hon James C. Greenwood.
36.	Copy of 3 Oct 97 letter from Hon James C. Greenwood to applicant.
37.	Copy of 5 Apr 99 memo from applicant's commander to applicant, subj:  Non-recommendation of award (Good Conduct Medal).
38.	Copy of 14 Apr 99 letter of support for AGCM.
39.	Copy of 23 Apr 99 letter of support for AGCM from NCOIC, DCSLOG.
40.	Copy of 21 Apr 99 letter of support for AGCM.
41.	Copy of 23 Apr 99 letter of support for AGCM from Motor Sgt.
42.	Copy of 29 Apr 98 General Counseling Form.
43.	Copy of Jul 98 General Counseling Form.
44.	Copy of AS degree.
45.	Copy of 15 Mar 96 NCO Academy graduation certificate.
46.	Second copy of Item 25.
47.	Second copy of Item 27.
48.	Second copy of Item 26.

INDEX

CASE ID	AR2000041871	
SUFFIX		
RECON		
DATE BOARDED	20010125	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	126.0400	
2.		
3.		
4.		
5.		
6.