MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 February 2002
	DOCKET NUMBER:   AR2001061298

	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:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger W. Able		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:  The removal of a record of proceedings of nonjudicial punishment (DA Form 2627) from the restricted fiche of his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that the nonjudicial punishment (NJP) was imposed against him when he was serving in an enlisted status in the pay grade of E-4.  Inasmuch as the applicable regulation no longer requires the filing of company grade punishment in the official records, he requests that it be removed.

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

He enlisted in the Regular Army on 7 September 1982 for a period of 4 years.  At the time of his enlistment, he indicated that he had been cited/charged with at least four driving offenses and one offense for public drunkness within a year of his enlistment.  

On 11 July 1985, while stationed in Germany in the pay grade of E-4, NJP was imposed against him for driving while intoxicated.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 30 days), a forfeiture of pay and extra duty.  The imposing commander directed that the DA Form 2627 be filed on the restricted fiche of the OMPF.

He reenlisted in 1986 and was promoted to the pay grade of E-5 on 5 April 1987. He remained on active duty through a series of continuous reenlistments and was appointed to the rank of warrant officer one (WO1) in the United States Army Reserve (USAR) on 28 February 1996, with a concurrent call to active duty.  He was promoted to the rank of Chief Warrant Officer Two (CW2) on 28 February 1998.

In the processing of this case, a staff advisory opinion was obtained from the Department of the Army Suitability Evaluation Board (DASEB), which opined that the record of NJP was properly filed on the restricted fiche of the OMPF and that there was no basis to remove it.  The opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board. 

Army Regulation 27-10 provides the policies and procedures for administration of military justice in the Army.  The regulation in effect at the time provided, in pertinent part, that the DA Form 2627 would be filed on the performance or restricted fiche of the OMPF, as directed by the imposing officer at the time punishment is imposed.  The regulation currently in effect, provides in pertinent part, that NJP imposed against soldiers in the pay grade of E-4 and below will be filed locally in unit NJP files for a period of 2 years.  For all others, the record of NJP will be filed in accordance with the imposing commander’s filing instructions.

Army Regulation 600-8-104 provides the policies and procedures for maintenance of the OMPF.  It provides, 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.  Documents on this fiche are those that must be permanently kept to maintain an unbroken, historical record of a soldier’s service, conduct, duty performance, evaluation periods, corrections to other parts of the OMPF, record investigation reports, record appellate actions and to protect the interest of the soldier and the Army.  The regulation also provides that a DA Form 2627 that is filed on the performance fiche of the OMPF will be moved to the restricted fiche if an enlisted member changes status to commissioned or warrant officer.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 record of the subject NJP was properly filed on the restricted fiche of his OMPF as directed by the imposing commander and there appears to be no good reason to remove it.

3.  It is noted that the applicant was appointed to the rank of WO1 and CW2 with the NJP in his OMPF.  It is also noted that selection boards are not routinely provided access to the restricted fiche of the OMPF.  Therefore, it is unlikely that the presence of the NJP on the applicant’s restricted fiche would be detrimental to his competitiveness for future schooling or promotions.

4.  Nonetheless, 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.

5.  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

__kak___  ___ra ___  __jh ____  DENY APPLICATION

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

INDEX

CASE ID	AR2001061298	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/05	
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.