MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 May 2002
	DOCKET NUMBER:   AR2002067512

	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. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Paula Mokulis		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 Nonjudicial Punishment (DA Form 2627) dated 9 March 1999, an Administrative Memorandum of Reprimand (MOR) dated 2 April 1999, a memorandum from the Department of the Army Suitability Evaluation Board (DASEB) dated 13 July 2001, and a MOR dated 1 February 2001, from his Official Military Personnel File (OMPF).

APPLICANT STATES:  That he desires to have the DA Form 2627 and two MORs’ removed from his OMPF, because he believes that if there is any negative documents left in his OMPF, he will get punished twice for the same offense.  By getting passed over for promotion, he has already been punished. 

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

He enlisted in Richmond, Virginia on 13 August 1986, for a period of 3 years and training as an air defense short-range gunnery crewman.  He has remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 1 July 1998.

On 9 March 1999, while stationed at Fort Bliss, Texas, nonjudicial punishment (NJP) was imposed against him for driving while under the influence (DWI) of alcohol.  His punishment consisted of a forfeiture of pay and extra duty.  He did not appeal the punishment and the imposing commander directed that it be filed on the performance fiche of his OMPF.

On 2 April 1999, the Commanding General (CG) issued him a MOR for the DWI offense.  After reviewing the applicant’s appeal/rebuttal of the MOR, the CG directed that it be filed in his OMPF and Military Personnel Records Jacket (MPRJ) for a period of 1 year.

On 21 April 2000, a memorandum was dispatched to the applicant informing him that the Calendar Year (CY) 2000, Master Sergeant Promotion Selection Board had determined that he should be barred from reenlistment under the Qualitative Management Program (QMP), based on the presence of the DA Form 2627, dated 9 March 1999, in his OMPF.  The applicant submitted an appeal of the bar to reenlistment and his appeal was approved on 15 December 2000.

Meanwhile, on 25 November 2000, the applicant was apprehended by El Paso, Texas, civil authorities for DWI and for his involvement in a traffic accident.  The applicant refused to submit to a breath test and on 13 December 2000, the CG issued him a MOR.  After reviewing the applicant’s appeal, the CG directed that it be filed in the applicant’s OMPF and his MPRJ for a period of 1 year.

The applicant submitted an appeal to the DASEB on 25 March 2001, requesting that the DA Form 2627 and the MOR dated 1999 be removed from his OMPF, based on intent served.  The DASEB denied his appeal on 13 July 2001.
Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  It states, in pertinent part, that a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer or officer having general court-martial jurisdiction over the recipient.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  However, before a letter may be filed in the OMPF, it must be referred to the recipient concerned for comment, it must include reference to the intended filing of the letter, and must be signed by an officer authorized to direct such filing.

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 Board finds that all of the documents in question are properly filed in the applicant’s OMPF and he has failed to provide sufficient justification to warrant either their transfer to the Restricted Fiche or removal from his OMPF. 

3.  By virtue of the fact that he has been punished twice for similar offenses within a 2-year period, while serving in his present grade, it is apparent that the punishment has not served its intended purpose, as he contended to the DASEB.

4.  The Army has an interest in maintaining certain records and the applicant has failed to provide evidence to show why the documents in question should not remain a matter of 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

___fe ___  ___pm __  __ra ____  DENY APPLICATION

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

INDEX

CASE ID	AR2002067512	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  328	134.0000/REM NJP/MOR	
2.		
3.		
4.		
5.		
6.