MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 APRIL 2002                   
	DOCKET NUMBER:   AR2002067518

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John T. Meixell		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 1999 record of nonjudicial punishment (NJP) be expunged from the restricted portion of his Official Military Personnel File (OMPF).

APPLICANT STATES:  He believes that “it would be unjust to keep the record of the Company Grade Article 15 on [his] restricted microfiche.”  He states that he has “greatly learned from [his] mistake” and maintains that retaining the NJP on his record “would unnecessarily hinder [his] career progression.”  In support of his request, he submits a copy of a statement, dated 12 October 2001, from the commander who imposed the NJP.  

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

He entered active duty in February 1994.  In January 1999, while serving in pay grade E-5 with a field artillery element from Fort Hood, which was deployed to Bosnia, the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for disobeying an order on two occasions, for being “disrespectful in deportment” toward a superior noncommissioned officer, for leaving his post as a sentinel before being properly relieved, and for communicating a threat to injure another soldier.  His punishment included forfeiture, restriction and extra duty.  He did not appeal the NJP.  The commander imposing punishment directed the record of the NJP be filed in the restricted portion of the applicant’s OMPF.

Subsequent to the NJP, the applicant was promoted to pay grade E-6 in October 1996.  His performance evaluation reports have been outstanding, and the applicant has been awarded several personal decorations, including two awards of the Army Good Conduct Medal.

The applicant’s former unit commander prepared the October 2001 statement, submitted by the applicant in support of his request.  The statement was addressed to the U.S. Army Enlisted Record Evaluation Center.  His commander wrote in that statement that he wished to “remove the record of a company grade Article 15” which he imposed as the applicant’s commander.  He (the commander) noted that during the period immediately following the disciplinary action, the applicant “recovered in a remarkable manner and demonstrated his leadership abilities and dedication to his duties.”  The commander stated that he did not “wish to see this isolated event interfere with a potential brilliant career.”

Army Regulation 27-10 provides policy for the administration of military justice.  It notes that NJP is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders who 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.  It also provides that the officer imposing NJP determines whether the report of NJP is to be filed on the individual’s restricted or performance fiche.

Army Regulations, which establish the responsibilities, policies, and procedures for maintaining and controlling the OMPF, state that the restricted fiche is the OMPF section for historical date that may normally be improper for viewing by selection boards or career managers.  The restricted fiche ensures that an unbroken, historical record of a member’s service, conduct, duty performance, evaluation periods, and corrections to other parts of the OMPF is maintained.  It is intended to protect the interest of the member and the Army.

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.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offenses, and there is no evidence of any substantive violation of any of the applicant’s rights.  

2.  The fact that the applicant’s unit commander noted that the applicant “was a model soldier after [he] imposed the punishment” is testament that the purpose of the NJP accomplished the goal for which it was established; that NJP is a tool available to commanders to correct, educate and reform offenders.  The fact that the applicant’s former commander now wishes to remove the record of NJP from the applicant’s OMPF is not sufficient to conclude that it’s original filing was in error or unjust.

3.  Although the applicant may perceive that retention of the record of NJP on his restricted fiche might somehow be prejudicial to his career, there is no basis to support that perception.  Rather, retention of the record protects the applicant and the Army’s interest by ensuring that a complete record of the facts are maintained.

4.  The record of NJP is properly filed and as such no error or injustice exists.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

5.  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 that requirement.

6.  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

__INW __  __MMD  _  __JTM __  DENY APPLICATION

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

INDEX

CASE ID	AR2002067518	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020416	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.