MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:             28 March 2002
	DOCKET NUMBER:    AR2002068527

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		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:  In effect, unjustified nonjudicial punishment (NJP) imposed on her by her unit commander, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), in January 2001 be overturned.

APPLICANT STATES:  In effect, that the unit commander lacked evidence when he imposed NJP on her in January 2001.  She states that just dismissing the NJP action would not be sufficient given she will shortly be released from the Army based on a medical discharge, and the reduction imposed by the NJP in question will impact her benefits.  She claims the NJP was given to her solely based on third-party information and was possibly in reprisal for previous complaints she made against her unit commander to the Inspector General (IG) and Equal Opportunity Officer (EOO).  In support of her application, she provides the enclosed self-authored statement outlining what she contends are the facts and circumstances surrounding the improper imposition of the NJP action against her by her unit commander.  

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

At the time of her application to this Board, the applicant was serving on active duty in military occupation specialty (MOS) 92M (Mortuary Affairs Specialist) at Fort Lee, Virginia, in the rank and pay grade of private/E-2 (PV2).  She has subsequently been discharged from the Army under the provisions of Army Regulation 635-40, by reason of disability with severance pay.  

The separation document issued to and signed by the applicant on the date of her separation confirms that she was discharged on 2 October 2001, in the rank and pay grade of PV2, after completing a total of 2 years and 9 days of active military service on her enlistment.  

The applicant’s Official Military Personnel File (OMPF) does not contain the NJP in question and the applicant did not provide a copy of the Record of Proceedings under Article 15 (DA Form 2627).  However, her record does confirm that she was reduced from the rank and pay grade of private first class/E-3 to private/E-2 on 23 January 2001.  

On 26 November 2001, the Assistant President of the Department of the Army Suitability Evaluation Board (DASEB) returned a petition the applicant submitted without action.  In this correspondence, it was indicated that an initial review of the applicant’s request revealed that she had not provided any evidence in support of her contentions, except her own self-authored statement.  In addition, in connection with the imposition of NJP, the applicant had been advised of her right to seek counsel and/or to request a court-martial to adjudicate her case. However, after consulting counsel, she elected not to request a court-martial and to have her unit commander handle the action.  
The DASEB further indicated that, by the applicant’s own admission, she appealed the NJP action to her battalion commander, who reviewed her appeal and denied it, which is evidence that she was provided due process in connection with the NJP action.  

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  It states, in pertinent part, that soldiers have the following rights in connection with NJP processing:  the right to remain silent, the right to counsel, and the right to demand trial.  The demand for trial may be made at any time prior to imposition of punishment.  

In addition, the regulation states that soldiers are also afforded the following other rights in connection with NJP processing:  to fully present their case in front of the imposing commander, except in rare circumstances; to call witnesses; to present evidence; to request to be accompanied by a spokesperson; to request an open hearing; and to examine available evidence.  Further, a soldier has the right to reasonable decision period in order to decide if they wish to demand trial by court-martial, which should provide sufficient time to consult legal counsel. 

Finally, the regulation confirms that soldiers have the right to appeal the NJP and that the next superior authority to the commanding officer who imposed the 
Article 15 will act on the appeal.  It further states that the superior authority will act on the appeal expeditiously, normally within 5 days and may conduct an independent inquiry into the case, if necessary or desirable. The superior authority may refer an appeal in any case to a Judge Advocate for consideration and advice before taking action.  

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 notes the applicant’s contention that the NJP she received was unjust and a reprisal against her for submitting IG and EOO complaints against her unit commander and that it should be overturned.  However, notwithstanding her personal statement, the Board finds insufficient evidence to support these claims. 

2.  Further, lacking a copy of the DA Form 2627 in question and evidence to the contrary, the Board presumes government regularity in the NJP process.  This presumption of regularity includes a determination that the applicant received due process.  This conclusion is further supported by the applicant’s own statement to the Board, in which, she admits the following:  that she consulted legal counsel; that she elected not to demand trial by court-martial and to have the unit commander handle the action; and that she appealed the NJP to her battalion commander, who denied the appeal. 

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

__FNE__  ___LE___  ___TL___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068527	
SUFFIX		
RECON		
DATE BOARDED	2002/03/28	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  338	134.0000	
2.		
3.		
4.		
5.		
6.