MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 June 2000
	DOCKET NUMBER:   AR2000042156

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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, removal of a record of nonjudicial punishment (NJP) (DA Form 2627) from the restricted fiche of his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that he was falsely accused of striking a female soldier on the buttocks while attending a birthday party that was very crowded and very poorly lit when the incident occurred.  He further states that he had an eyewitness to contest his striking the soldier and that at the time the NJP was read to him, he was not properly advised and believed that he had no rights as a soldier.  He goes on to state that the commander did not consider what he had to say and chose instead to believe the female soldier.  He also states that he was serving in the pay grade of E-5 at the time, that he was 25 years of age with 7 years of service, and that it was his only encounter with any misconduct or disciplinary actions.  He continues by stating that the record of NJP has impaired his promotion to the pay grade of E-7 and he desires it to be removed from his records because he once read in the Army Times about a soldier that had a record of NJP removed from his records and was promoted to the pay grade of E-7.  Accordingly, he desires the same. 

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

The applicant enlisted in Raleigh, North Carolina on 6 August 1981 for a period of 3 years, training as an equipment and repair parts specialist, and assignment to Fort Polk, Louisiana.  

He successfully completed his training and has remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-5 on 7 July 1986.

On 20 September 1988, while stationed in Sanhofen, Germany, NJP was imposed against him for unlawfully striking a female on the buttocks with his hand.  His punishment consisted of a forfeiture of pay, extra duty and restriction.  He appealed the punishment and his appeal was denied on 3 October 1988.  The officer imposing the punishment directed that the record of NJP (DA Form 2627) be filed on the restricted fiche of the applicant’s OMPF.

The applicant was promoted to the pay grade of E-6 on 1 March 1993 and a review of his records fails to reveal any further derogatory information or disciplinary action being taken against him.

Army Regulation 27-10 prescribes the guidelines for the filing of NJP.  It states, in pertinent part, that the decision to file the original DA Form 2627 on the performance or restricted fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627.
Army Regulation 600-8-104 serves as the authority for the filing and release of documents authorized for filing in the OMPF.  It states, in pertinent part, that the restricted fiche is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this fiche is controlled and will not be released without written approval from the Commanding General, Total Army Personnel Command or the Headquarters, Department of the Army selection board proponent. 

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.  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 the requirement.

2.  It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The punishment was not disproportionate to the offense and there is no evidence of any violations of the applicant’s rights.   

3.  Although the applicant would like the Board to believe that he was unjustly accused, that the commander did not take into account his side of the events, and that the record of NJP has caused him to be nonselected for promotion to the pay grade of E-7, such does not appear to be the case.  The Board notes that the commander placed the record of NJP in the restricted fiche of his OMPF; which would lead the Board to believe that he gave the applicant some benefit of the doubt by placing it where it would not hinder his career. 

4.  As a general rule, selection boards are not routinely provided access to the restricted fiche of the OMPF for soldiers in the applicant’s grade.  Therefore, his assertion that his promotion potential has been hindered by the presence of the record of NJP in his OMPF appears to be without merit.

5.  The Board also notes that he appealed the record of NJP at the time and the commander who considered his appeal was also not convinced of his innocence; as evidenced by his denial of the applicant’s appeal.  Additionally, if the applicant believed that he was not guilty of the charge against him, he could have demanded trial by court-martial, whereas he could have asserted his innocence.  In the absence of evidence to the contrary, the Board must presume that he made the choices he believed were in his own best interests. 

6.  While it is unfortunate that the applicant has not been promoted, the Army has an interest in maintaining such documents, and the applicant has not shown sufficient reasons why it should not remain a matter of record, even after considering his entire record. 

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

__mvt___  ___owt__  ___kan __  DENY APPLICATION

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

INDEX

CASE ID	AR2000042156	
SUFFIX		
RECON		
DATE BOARDED	2000/06/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  277	126.0000/REM NJP	
2.		
3.		
4.		
5.		
6.