MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 September 2000                   
	DOCKET NUMBER:   AR2000044735

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		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:  That his rank of Specialist (SPC), E-4 be restored and that his Article 15 be expunged from his records.

APPLICANT STATES:  That the punishment was overly excessive and due process was not provided.  He was instructed to sign the Record of Proceedings Under Article 15, UCMJ, DA Form 2627, (Article 15) before his allotted time of  48 hours was up.  He was given only 24 hours after first signing it before, after consultation with counsel, they had him sign it again.  There was no time to prepare any defense.  His squad leader was very upset with him that week and influenced the chain of command to make him a public example.  The minor in question was not even named on the Article 15.  He wants to put this whole incident behind him and clear his name to further his military career.  He provides the Article 15, a 4-page Visitation/Barracks Policy memorandum, a General Counseling Form dated 30 April 1998, and a handwritten statement by Sergeant H___ dated 4 May 1998 as supporting evidence

EVIDENCE OF RECORD:  The applicant's military records (fiche for his Regular Army service only) show:

He enlisted in the Regular Army on 20 June 1995.  He was promoted to SPC on an unknown date.

On 30 April 1998, the applicant was counseled for sneaking a female minor into the barracks and for disrespect towards his squad leader.  The squad leader noted that the charge of quarters had caught the applicant sneaking a 16-year old female into the barracks in violation of a verbal order given to the battalion formation less than a week previously and the squad leader knew the applicant was at that formation.  

On 6 May 1998, at 1600 hours, the applicant’s battalion commander informed him he was being considered for punishment under Article 15, Uniform Code of Military Justice for failing to obey a lawful order by wrongfully bringing a 16-year old female into the barracks.  The applicant was informed he had 48 hours to decide what to do.  On 7 May 1998, the applicant signed item 3 of the DA Form 2627 acknowledging that he was afforded the opportunity to consult with counsel and he had decided not to demand trial by court-martial, to request an open hearing, to request no one to speak in his behalf, and to present matters in defense, mitigation and/or extenuation in person.  On 7 May 1998, the battalion commander imposed punishment of a reduction to Private, E-1, a forfeiture of $463.00 pay for 2 months, and restriction and extra duty for 45 days.  The applicant was advised he had 5 calendar days to appeal the punishment.  On     7 May 1998, the applicant signed item 7 of the DA Form 2627 checking he did not want to appeal.  Item 5 of the DA Form 2627, instructions as to whether the form would be filed on the performance fiche or restricted fiche, is deleted.

On 7 February 1999, the applicant was advanced to Private, E-2.

On 19 June 1999, the applicant was honorably released from active duty, in pay grade E-2, upon completion of his required term of service.  He apparently is currently in the Army National Guard.

Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; determining whether the soldier committed the offense(s) where Article 15 proceedings are initiated and the soldier does not demand trial by court-martial; and determining the amount and nature of any punishment if punishment is appropriate.

Army Regulation 600-8-104 controls the filing of documents in military personnel records.  Table 6-1 provides that, for Article 15s issued on or after 25 January 1990, the DA Form 2627 for soldiers Specialist or Corporal or below will be filed only in local nonjudicial punishment files.  It will not be filed in the military personnel records jacket (MPRJ) or the official military personnel file (OMPF) of these soldiers.

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 this requirement.

2.  The non-judicial punishment proceedings were conducted in accordance with applicable law and regulations and the punishment imposed was within legal limits.  While a soldier is required to be given a certain amount of time in which to make appropriate decisions during the Article 15 process, the soldier is not required to take all the time allotted.  The applicant has provided no evidence to show the decisions he made were not his considered decisions after consulting with counsel.  In the absence of extraordinary circumstances the Board is reluctant to substitute its judgment for that of the commander who was on the scene.

3.  The record of proceedings (DA Form 2627) is not filed on the applicant’s available fiche and presumably was filed in unit files only.

4.  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

__aao___  __mhm___  __tfb___  DENY APPLICATION

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

INDEX

CASE ID	AR200004735	
SUFFIX		
RECON		
DATE BOARDED	20000926	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	126.02	
2.	126.04	
3.		
4.		
5.		
6.