MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            16 May 2002                  
	DOCKET NUMBER:   AR2002070500

	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. Roger Able		Member	
	Ms. Paula Mokulis		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, that a record of nonjudicial punishment (NJP), Record of Proceedings Under Article 15, UCMJ (DA Form 2627), be removed from or moved to the restricted portion (R-Fiche) of her Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that she is requesting that the DA Form 2627 in question be removed from her record or moved to the R-Fiche of her OMPF because she believes she has been punished long enough.  In support of her application, she submits two letters of recommendation from her battalion commander and a marketing officer; in addition, to a letter of appreciation from the commanding general, United States Army Recruiting Command (USAREC).  

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

She is currently serving on active duty in the Regular Army, in the rank and pay grade of staff sergeant/E-6 (SSG/E-6), in military occupational specialty (MOS) 75H (Personnel Sergeant).  She is presently assigned to the Syracuse Recruiting Battalion, Syracuse, New York, performing duties in MOS 75H, as the battalion personnel staff noncommissioned officer (PSNCO).  

On 1 April 1997, while serving as a sergeant/E-5 (SGT/E-5) in Korea, the applicant accepted NJP for signing an official document, a promotion point worksheet, with the intent to deceive and for soliciting another soldier to falsify an official document.  Her punishment for these offenses was a reduction to the grade of E-4; a forfeiture of ½ months pay (suspended); and 45 days of restriction and extra duty.  During the NJP proceedings, the applicant was advised by her unit commander that the DA Form 2627 would be filed in the performance portion (P-Fiche) of her OMPF, and that she had 5 calendar days to appeal the action.  The applicant elected not to appeal the NJP.  

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  It states, in pertinent part, that the decision whether to file a record of NJP on the P-Fiche of a soldier's OMPF rests with the imposing commander at the time punishment was imposed and will be recorded in item 
5 of the DA Form 2627.  

Paragraph 3-37b(2) states, in pertinent part, that for soldiers in the ranks of sergeant (SGT) and above, the original record of NJP will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original
DA Form 2627 on the P-Fiche or R-Fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final.

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 record of NJP in question should be either removed from or moved to the R-Fiche of her OMPF, but it finds insufficient evidence to support this claim.  

2.  The evidence of record confirms that the disposition and filing of the record of NJP accepted by the applicant on 1 April 1997, while she was serving in the noncommissioned officer rank of sergeant (SGT), was accomplished in accordance with applicable regulations.  Further, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the NJP process.  

3.  By regulation, the decision to file the original DA Form 2627 in the P or 
R Fiche portion of the OMPF will be determined by the imposing commander at the time punishment is imposed and this filing decision is final.  Therefore, the filing determination made by the commander at the time the 1997 NJP was imposed upon the applicant is still valid under current regulatory standards.  

4.  In view of the facts of this case, the Board finds no evidentiary basis for removing the DA Form 2627 in question from the applicant’s record.  Further, it concludes that the applicant has failed to provide sufficient mitigation to warrant this action.  

5.  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.

6.  Although the Board finds an insufficient basis for removing the DA Form 2627 in question from the OMPF, it has elected not to render a judgment on the applicant’s request to transfer the NJP in question to the R-Fiche of her OMPF.  This decision is based on the fact that the applicant has not yet exhausted administrative remedies in this regard.  The applicant is advised that she retains the right to petition the Department of the Army Suitability Evaluation Board (DASEB) for relief.  While removing the DA Form 2627 in question from her OMPF is not within the purview of the DASEB, it does have the authority to move the record of NJP to the R-Fiche of her OMPF, if it finds sufficient reason.  If she wishes, she may still pursue this available administrative remedy.  

7.  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___  __RA__  __PM____  DENY APPLICATION

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

INDEX

CASE ID	AR2002070500	
SUFFIX		
RECON		
DATE BOARDED	2002/05/16	
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.  267	123.0700	
2.		
3.		
4.		
5.		
6.