PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            18 June 2002
	DOCKET NUMBER:   AR2002068503

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests removal of the record of proceedings of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), imposed on 28 January 1993.  He also requests that the rank that he held prior to the imposition of the NJP be restored.

3.  The applicant states, in effect, that he was punished for informing his first sergeant that a noncommissioned officer (NCO) and a private were having an affair.  He states that instead of the individuals concerned being punished, he was furnished a counseling statement and reduced in rank from corporal to specialist.  He also states that he applied for a discharge under the provision of Army Regulation 635-200, chapter 5-3 on 7 December 1992 and that his first sergeant held up the paperwork to keep him from separating early.  He states his first sergeant and another senior NCO made it impossible for him to leave the field for 2 weeks and that he needed to get a separation physical before his request for a chapter 5-3 could be approved.  He states that he was not allowed to get his separation physical until the Office of the Secretary of the Army contacted his company and asked why he had not returned a copy of the physical.  He further states that when he was leaving the field, he decided to wear his corporal stripes because he believed that his reduction in rank was illegal and that his senior NCO grabbed him by the neck and began to choke him.  He states that he was only defending himself when he grabbed the NCO’s arm twisting it until he fell to the ground and that he never struck him in any way.  He goes on to state that he was brought up on charges that were lies and that he was never allowed to get legal advice.  He concludes by stating that his name and rank are incorrect on the DA Form 2627 and that the blemish on his record should be removed.

4.  The applicant’s military records show that on 6 July 1989 he enlisted in the Army for 4 years in the pay grade of E-1.  He successfully completed his training as a signal channel radio operator.

5.  He was promoted to the rank and pay grade of private (E-2) on 6 January 1990, to private first class (E-3) on 21 October 1990 and to specialist (E-4) on 1 July 1991.  On 21 December 1991, he accepted a lateral appointment to corporal (E-4).

6.  On 28 January 1993, NJP was imposed against the applicant for disobeying two lawful orders given by his senior NCO, for being disrespectful in language toward his senior NCO and for assaulting a senior NCO by grabbing his arm and not letting go.  His punishment consisted of a reduction to the pay grade of E-3 and a forfeiture of pay.

7.  The applicant was honorably released from active duty on 9 February 1993, under the provisions of Army Regulation 635-200, chapter 5, section II by direction of the Secretary of the Army.  He had completed 3 years, 7 months and 4 days of total active service.

8.  A review of the record of proceedings of nonjudicial punishment shows that the applicant’s name is spelled incorrectly and his rank is reflected as specialist.  However, pen and ink changes were made to correct them.  Further review of the record of proceedings shows that the applicant opted not to demand trial by a court-martial.  Although it is not a part of the available record the applicant indicated that he appealed the Article 15 and submitted additional matters in his own behalf.  The NJP was filed in his Military Personnel Records Jacket (MPRJ).

9.  A review of the filing instruction for Article 15s, which is listed in Army Regulation 600-8-104, shows that a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) issued after 25 January 1990 to soldiers serving in pay grade E-4 and below will be filed only in local files.  

CONCLUSIONS:

1.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense.

2.  The fact that the applicant’s name and rank are reflected incorrectly on the DA Form 2627  does not negate the fact that he committed the offenses for which he was charged.  He was reduced to the pay grade of E-3 as a result of the NJP and considering his acts of indiscipline, it does not appear that the punishment he received was unjust or too severe.  The applicant was afforded the opportunity to demand a trial by court-martial, whereas he could have asserted his innocence at that time.  The Board will not attempt to assess guilt or innocence based on the limited facts available 9 years after the incident.

3.  However, in accordance with the applicable regulation, the DA Form 2627 was improperly filed in his MPRJ.  At the time that it was issued, he was performing in the pay grade of E-4 and the NJP should have been filed only in local unit files.  Therefore, it would be in the interest of justice to remove the Article 15 from his MPRJ.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removal therefrom of the record of NJP imposed upon the individual concerned on 28 January 1993 together with all documents related thereto.

2.  That following completion of the administrative correction directed herein, the proceedings of the Board and all documents related to the subject NJP be returned to the Board for permanent filing.  

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___kak__  __alr____  ___mm__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Karol A. Kennedy____
		        CHAIRPERSON

INDEX

CASE ID	AR2002068503	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/18	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  277	126.0000	
2.  281	126.0400	
3.		
4.		
5.		
6.