MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 June 2002
	DOCKET NUMBER:   AR2002071759

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		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 the record of non-judicial punishment (NJP), DA Form 2627, dated 10 September 1996, be removed from his Official Military Personnel File (OMPF) or be moved from the performance portion
(P-Fiche) to the restricted portion (R-Fiche) of his OMPF. 

APPLICANT STATES:  In effect, that he made a mistake and has now acquired the skills to be a better non-commissioned officer (NCO).  He further states that the removal or transfer of the record of NJP will enhance his opportunity for promotion.  In support of his application, he submits a copy of the DA Form 2627 in question and a copy of the Department of the Army Suitability Evaluation Board (DASEB) decision summary in his case. 

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

He is currently serving on active duty at Fort Jackson, South Carolina, in the rank and pay grade of staff sergeant/E-6 (SSG/E-6), and performing duties in military occupational specialty (MOS) 11B (Infantryman).

On 10 September 1996, the applicant accepted NJP for failure to report to his appointed place of duty (physical training formation).  He elected not to appeal the NJP or to submit matters in extenuation, mitigation, or defense.  The punishment imposed consisted of a forfeiture of $391.00 pay for 1 month and 
14 days of extra duty and restriction (suspended).  On 25 September 1996, the applicant failed to report to physical training formation and the suspended portion of the punishment imposed was vacated.  

The applicant submitted a request to the DASEB requesting that the DA Form 2627 in question be transferred to the R-Fiche of his OMPF.  The DASEB case summary pertaining to the applicant indicated that he offered only his record as evidence to justify his request.  It further stated that the applicant’s misconduct occurred while he was serving in the rank of SSG/E-6 and he provided no supporting statements from the NJP issuing authority or other personnel in the chain of command at the time or no proof of rehabilitation or support from his current chain of command.  His record was only average and he did not contest the misconduct, which formed the basis for the NJP action.  As a result, the DASEB voted to deny his request. 

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 removed from or transferred to the R-Fiche portion of his OMPF in order to allow him the opportunity to compete for promotion with his peers.  However, it finds this factor is not sufficiently mitigating to warrant the requested relief. 

2.  The Board concurs with the DASEB determination that the applicant failed to provide a sufficient basis for the transfer of the record of NJP in question to the R-Fiche of his OMPF.  In addition, it concludes the applicant has failed to provide matters of mitigation that would warrant removal of the DA Form 2627 from his OMPF at this time.  

3.  On 10 September 1996, the applicant accepted NJP for his failure to report to his appointed place of duty (physical training formation).  The Board is satisfied that the NJP proceedings were conducted in accordance with applicable law and regulations; the punishment imposed was within legal limits; and that the DA Form 2627 is properly on file in the P-Fiche portion of the OMPF as directed by the imposing commander.  

4.  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.

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

     JLP          AAO           RKS       DENY APPLICATION

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

INDEX

CASE ID	AR2002071759	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/04	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.0400	
2.		
3.		
4.		
5.		
6.