MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            21 May 2002
	DOCKET NUMBER:   AR2002067907

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Thomas Lanyi		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 two Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), be removed from his Official Military Personnel File (OMPF) and that his records be restored.

APPLICANT STATES:  In effect, that he is requesting removal of the Article 15s from his records because he was very sick at the time and had no idea he was in the early stages of hepatitis.  He stated that he was hospitalized with a diagnosis of hepatitis and spent a few weeks at the 97th General Hospital.  He feels that it is not right to impose penalties on a person whose life was in the balance.  In support of his application, he submits a supplemental letter; a copy of his Article 15, dated 9 May 1973; a Narrative Summary (Standard Form 502), dated 26 May 1973; and a web page on the Hepatitis B Virus.

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

The applicant enlisted in the Regular Army on 1 September 1972 for a period of two years.  He successfully completed basic and advanced individual training and served in Germany from 12 January 1972 through 9 January 1974.  The applicant was honorably released from active duty on 3 September 1974.

On 9 May 1973, the applicant was punished under Article 15, UCMJ, for being absent from his place of duty on or about 1445 hours to on or about 1700 hours on 1 May 1973.  

The applicant acknowledged receipt of the Article 15, did not demand trial by court-martial, and elected not to submit matters in his own defense.  His punishment consisted of forfeiture of $79.00, performance of extra duty for 2 hours per day for a period of 14 days, and restriction to the Troop B billets, place of duty, place of worship, and mess hall for a period of 14 days.  The applicant accepted the Article 15 and elected not to appeal the punishment.  

The applicant was punished again under Article 15, UCMJ, on 12 July 1974, for being derelict in the performance of his duties in that he failed to stand guard at the appointed place set by his section sergeant and for disobeying a lawful order from his superior noncommissioned officer.  

The applicant elected not to demand trial by court-martial, requested a closed hearing in the Article 15 proceedings, elected to submit matters in his own defense, and waived consultation with a lawyer.  After consideration of all matters presented in the closed hearing, the imposing commander decided that, beyond a reasonable doubt, that the applicant committed the offenses and imposed the punishment of forfeiture of $80.00, 7 days extra duty, and 7 days restriction to the "downs" barracks.  The applicant accepted the Article 15 and elected not to appeal the punishment.

Army Regulation 27-10 (Military Justice), in pertinent part, states the applicable policies for nonjudicial punishment.  The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627.  The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a soldier’s record.

Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File 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 Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

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 Board considered the applicant's contentions regarding his medical condition and the medical records which diagnosed the applicant as having hepatitis.  However, the Board noted that this medical condition was unrelated to his acts of indiscipline.  Therefore, there is no basis for removing the applicant's Article 15s from his records based on his medical condition.

2.  The Board considered the applicant's request for removal of the two Article 15s from his Official Military Personnel File.  However, there is no evidence, and the applicant has provided no evidence, that the Article 15s were in error or unjust.  Army Regulation 27-10 and Army Regulation 15-185 (Policy and Procedures for Applying to the Army Board for Correction of Military Records) specifically preclude the removal of a valid DA Form 2627 from a soldier’s record, by the Army Board for Correction of Military Records, without compelling evidence.  The Board finds no compelling evidence to support removal of the applicant’s two Article 15s.  Therefore, his Record of Proceedings under Article 15, UCMJ, dated 9 May 1973 and 12 July 1974 will not be expunged from his records.

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

JLP_____  BJE_____  TL______  DENY APPLICATION

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

INDEX

CASE ID	AR2002067907	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020521	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	126.0500	
2.		
3.		
4.		
5.		
6.