MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           25 April 2002                            
	DOCKET NUMBER:   AR2002067433

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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 a 1990 DA Form 2627, Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice), be expunged from his military records or transferred to the restricted portion of his Official Military Personnel File (OMPF).

APPLICANT STATES:  The nonjudicial punishment (NJP) resulted from a confrontation between himself and a staff sergeant (SSG).  “I was talking long distance with my wife concerning the shipment of our household goods as we were in the process of a PCS move.  SSG G____ picked up the other phone and slammed the receiver against the desk and told me to get off of the phone.  I showed disrespect in my statement to him because I was offended and angered by his actions.  The Army has since begun a program called Consideration of Others.  If this program had been in place in 1990, this event may not have resulted in an Article 15.” 

COUNSEL CONTENDS:  Counsel offered no evidence or argument beyond that submitted with the application.  

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

The applicant is a sergeant first class (E-7) with more than 21 years of continuous active duty.  He was a sergeant (E-5) with approximately 11 years service when he was notified that his company commander was considering whether to impose NJP for treating the SSG with contempt and being disrespectful by saying, “You hang up the God dammed phone.”  “You don’t pull no shit like that” and yelling “No” or words to that effect.  The applicant acknowledged that he had been afforded an opportunity to consult with counsel.  He waived his right to demand trial by court-martial and requested an open hearing.  He also requested that another person speak in his behalf and indicated that matters in defense, mitigation and/or extenuation would be both presented in person and were attached.  

The punishment comprised forfeiture of $306.00 dollars per month for 1 month and 14 day restriction (both suspended).  The officer imposing the punishment directed that the record be filed in the performance portion of the applicant’s OMPF.  The applicant appealed the punishment.  An officer of the Judge Advocate General’s Corps opined that the proceedings were conducted in accordance with law and regulation and that the punishment was not disproportionate to the offense.  The appeal authority denied the appeal.  The DA Form 2627 is filed in the applicant’s performance fiche. 

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

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.  Prior to accepting NJP the applicant was offered the right to consult with counsel who was obliged to advise him of his rights, including his right to demand trial by court-martial.

2.  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.  The applicant’s assertion that, “If this program had been in place in 1990, this event may not have resulted in an Article 15.” tends to indicate that he still has not accepted responsibility for his own actions.  The DA Form 2627 is properly filed and its presence in the performance portion of the applicant’s OMPF is not unjust. 

4.  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

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

__JHL___  __GDP__  __CG___  DENY APPLICATION

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

INDEX

CASE ID	AR2002067433	
SUFFIX		
RECON		
DATE BOARDED	20020425	
TYPE OF DISCHARGE		
		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.04	
2.		
3.		
4.		
5.		
6.