MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  4 June 2002
	DOCKET NUMBER:  AR2002067603

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Arthur A. Omartian		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 his record of punishment under Article 15, Uniform Code of Military Justice (UCMJ) and related documents be removed from the Restricted (R) fiche of his Official Military Personnel File (OMPF).

APPLICANT STATES:  That on 17 January 1990, Article 15s, UCMJ, issued to SPC/E-4 and below were no longer filed on their OMPF and that his Article 15, UCMJ, was set aside along with all punishment because he was not supposed
to receive it.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 30 August 1984, as a light weapons infantryman.  He continues to serve on active duty in the rank of sergeant first class.

On 6 June 1986, he was punished under Article 15, UCMJ, for failure to go to his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, and 14 days restriction and extra duty.

The applicant’s commander recommended that the Article 15, UCMJ, be filed on the R fiche of the applicant’s OMPF.

On 13 November 1986, a DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) was prepared by the applicant’s commander.  The commander set aside the applicant’s punishment of reduction to the pay grade of E-3 and forfeiture of pay imposed on 6 June 1986.  He indicated that there was a mistake on the applicant’s Article 15, UCMJ, because he had wanted the punishment to be suspended.  He also indicated that instead of causing unnecessary hardship to the soldier, the punishment would be set aside.

The applicant’s records contain a copy of a DA Form 2496 (Disposition Form), dated 13 November 1996, subject:  Setting Aside Punishment, which was prepared by the applicant’s commander.  The commander stated that all punishment was supposed to have been suspended.  However, his recommendation for suspension of punishment was lost and the punishment 
was imposed.  It was his intent to set aside all punishment that exists so that the applicant does not suffer any undue hardship due to the error in the system.

Army Regulation 608-104 prescribes the composition of the OMPF.  It states,
in pertinent part, that forms recording punishment imposed after 1 November 1982, are filed on the performance or restricted fiche of the OMPF as directed by item 5, DA Form 2627.  If Article 15, UCMJ, is wholly set aside and is filed on the Performance (P) fiche, it will be moved to the R fiche.  The DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ), directing the action will be filed on the R fiche.  If the Article 15 is filed on the R fiche, the DA Form 2627-2 setting it aside is also filed on the R fiche.  Documents accompanying Article 15s are filed on the R fiche.
It also states that Article 15s, UCMJ, issued on or after 25 January 1990, for soldiers SPC/CPL or below will be filed only in local nonjudicial punishment files. The DA Form 2627 will not be filed in the MPRJ or OMPF of these soldiers.

Paragraph 2-4 of this regulation states that once a document is placed in the 
OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  

Army Regulation 27-10, in effect at the time, prescribed the guidelines for the filing of nonjudicial punishment.  Paragraph 3-3b (2) states, in pertinent part, that the decision to file the original DA Form 2627 in the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5, of the DA Form 2627.

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 applicant’s contention has been noted by the Board; however, his Article 15, UCMJ, and accompanying documents were properly filed on the R fiche of his OMPF in accordance with applicable regulations.  

2.  The Board also notes the applicant’s contention that in January 1990, Article 15s, UMCJ, issued to SPC/CPL or below were no longer filed in their OMPF; however, the applicant’s punishment was imposed prior to January 1990, and would remain filed on his R fiche in accordance with regulation.

3.  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.

4.  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

__jp___  ___rs___  __ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2002067603	
SUFFIX		
RECON		
DATE BOARDED	20020604	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	ACTIVE DUTY	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  267		
2.		
3.		
4.		
5.		
6.