PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            22 March 2001     
	DOCKET NUMBER:   AR2001053849

	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:

	Shirley Powell		Chairperson	
	Regan K. Smith		Member	
	John P. Infante		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 a 1986 record of nonjudicial punishment (NJP) be expunged from his Official Military Personnel File (OMPF) 

3.  The applicant states, in effect, that it has been more than 14 years since the incident and he believes that his record of service and current status justify removal.

4.  Records available to the Board indicate the applicant entered active duty on 20 January 1984.  In May 1986, while serving in pay grade E-4, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful command from a superior commissioned officer.  The record of NJP indicates the applicant was told “to stay out of Yong-Ju-Gol, Republic of Korea, which was off limits” and on or about 2 May 1986 “willfully disobeyed the same.”

5.  His punishment included 14 days of extra duty, 14 days of restriction and reduction to pay grade E-3 which was suspended for 30 days.  The commander imposing punishment, a first lieutenant, directed that the NJP be filed in the applicant’s restricted fiche.

6.  The applicant has served on continuous active duty since his 1984 enlistment.  His records indicated that he has consistently received exceptional performance evaluation reports, including being named honor graduate at his Advanced Noncommissioned Officer Course (ANCOC).  He performance has been recognized with an award of a Meritorious Service Medal, Army Commendation Medal and several Army Good Conduct Medals, including one during the period he received the UCMJ action.

7.  In 1993 the applicant was promoted to pay grade E-7 and in 1998 he was promoted to E-8.

8.  A review of the filing instructions for records of nonjudicial punishment, which is listed in Army Regulation 600-8-104, shows that a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) issued after 25 January 1990 to soldiers serving in pay grade E-4 and below will be filed only in local files.  Previously, from 1 November 1982 until 24 January 1990, the issuing commander directed whether the DA Form 2627 would be filed in the performance or restricted section the OMPF.

9.  At the time the applicant received his NJP Army Regulation 640-10, which established the policies and provisions for the maintenance and release of information in the OMPF, stated that “although not routine, the R fiche may be 

released to DA selection boards.”  The board president was required to request permission from the Office of the Deputy Chief of Staff for Personnel to review specific restricted information when he or she believed the information was crucial to the selection process.  There were no provisions to routinely provided information from the restricted fiche to selection boards.

10.  However, Army Regulation 600-8-104, currently in effect, and which replaced Army Regulation 640-10, states that disciplinary information filed on the restricted fiche will be provided to Command Sergeant Major/sergeant major (CSM/SGM) and SGM academy selection boards.  For the purpose of this provision, disciplinary information includes court-martial orders, records of NJP, and punitive or administrative letter of reprimand, censure or admonition.

CONCLUSIONS:

1.  The Board notes that the applicant’s record of NJP was properly in his restricted fiche in accordance with the rules then in effect and as such there is no evidence of error.

2.  However, the Board also notes that at the time the NJP was filed disciplinary information in the restricted fiche was not routinely provided to selection boards.  That policy has since changed and today disciplinary information contained in the restricted fiche is automatically provided to CSM/SGM and SGM academy selection boards.  As such the Board concludes that an injustice arises out of the fact that the applicant’s 1986 record of NJP, which was filed with the belief that it would not be seen by selection boards, will now automatically be seen when he is considered for his next promotion or attendance at the SGM academy.

3.  The Board notes that the applicant has an exceptional record of performance as evidenced by his outstanding performance evaluation reports, award of a Meritorious Service Medal, and promotion to pay grade E-7 with less than 10 year of service and to E-8 with barely 14 years.  As such the Board concludes that the 1986 record of NJP has served its purpose and it would be appropriate and in the interest of justice to expunge the record from the applicant’s OMPF.

4.  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 1986 record of nonjudicial punishment from the OMPF of the individual concerned.

BOARD VOTE:  

___sp___  ___rks__  ___jpi_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001053849	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010322	
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.