MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 May 2002                           
	DOCKET NUMBER:   AR2002070252

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer 		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Donald P. Hupman, Jr.		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 the record (DA Form 2627) of a 9 December 1986 nonjudicial punishment (NJP) imposed under the provisions of Article 15, Uniform Code of Military Justice be expunged from the restricted portion of his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that the DA Form 2627 should be expunged because, since 17 January 1990, such records for individuals serving in pay grade E-4 and below are filed only in local records.  He believes that he has served long enough for his performance to demonstrate that he has overcome this situation.

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

The applicant, currently a Regular Army military policeman, entered active duty on 1 August 1984.  He was promoted to staff sergeant on 1 May 1992.  His awards include the Army Commendation Medal, the Good Conduct Medal (Fourth Award) and the Army Achievement Medal with three Oak Leaf Clusters.

On 6 December 1986 the applicant was advised that his company commander was considering whether to impose NJP for willful disobedience of a captain and violation of a lawful general regulation by taking photographs in a restricted area. 

The applicant was afforded an opportunity to consult with counsel.  He did not demand trial by court-martial, requested an open hearing and did not request that another person speak in his behalf.  He indicated that matters in mitigation or extenuation would not be presented.

The company commander imposed punishment consisting of reduction to pay grade E-3 (suspended for 30 days), forfeiture of $50.00 per month for 1 month and 14 days extra duty.  He directed that the DA Forn 2627 be filed in the restricted portion of the applicant's OMPF.  The applicant did not appeal.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom 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.  The imposing commander is not bound by the formal 

rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.
Effective in 1987 Army Regulation 27-10 was changed to provide for the filing of NJP in a unit punishment file and the military personnel record jacket (MPRJ) for soldiers in pay grade E-4 and below who have been in the Army less than 3 years on the date the punishment is imposed.  Those provisions were not retroactively applied to previously issued NJPs.
 
A review of the filing instructions 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 are to be filed only in local files.  Previously, from 1 November 1982 until 24 January 1990, the issuing commander directed whether the DA Form 2627 would be filed in the performance or restricted section the OMPF. 

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 offense, and there is no evidence of any substantive violation of any of the applicant's rights.

2.  The NJP was imposed before 25 January 1990.  It was and is properly filed on the restricted portion of the applicant's OMPF as the imposing officer directed.
 
3.  Removal of the this NJPs would, in effect, place him on a level playing field with soldiers, with similar years of service, whose careers have not been marred by incidents of such inappropriate behavior.
 
4.  The Army has an obligation to maintain a complete and accurate record of an individual's service.  The placement of a record of NJP on the restricted fiche enables the Army to maintain that historical record without unduly jeopardizing the individual's career.

5.  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

_MHM___  ___KAN_  ___DPH _  DENY APPLICATION

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

INDEX

CASE ID	AR2002070252	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020514	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.01	
2.		
3.		
4.		
5.		
6.