PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            26 SEPTEMBER 2002                  
	DOCKET NUMBER:   AR2002072252

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Karen Y. Fletcher		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 that the record of nonjudicial punishment that he received on 14 August 1996 under Article 15, UCMJ, be removed from his official military personnel file (OMPF).   

3.  The applicant states that the charges of disobeying a superior commissioned officer and failure to go to his appointed place of duty are both legally and factually incorrect.  The charge of failure to obey a lawful order made reference to Fort Buchanan Memorandum 190-5, a portion of which could not be found, nor did it refer to the use of military police vehicles on patrol.  The charge of dereliction in the performance of his duties is multiplicious with the previous charge, but was not dismissed.  He has excelled as a soldier, but the presence of the unjust Article 15 has tarnished his military career, and it would be in the best interest of the military to have it removed.  He submits with his application a        3 June 1997 memorandum by his defense attorney, and a copy of the Article 15 proceedings, to include his appeal and supporting documents. 

4.  The applicant’s military records show that he enlisted in the Army for six years on 6 July 1989, and has remained on continuous active duty.  The applicant is a military policeman and was promoted to staff sergeant on 1 July 1998.  He completed the military police basic NCO course (BNCOC) in 1998.   

5.  The applicant’s NCO Evaluation Report (NCOER) for the period July 1995 through February 1996 shows that the applicant was a military police team leader assigned to Headquarters Company, U.S. Army Garrison (USAG) at Fort Buchanan.  That report shows that his rater considered him fully capable for promotion and service in positions of greater responsibility.  His senior rater placed him in the third from the top block in both the performance and potential portions of that report.  The report was reviewed on 28 March 1996 by a Major “G,” then the installation provost marshal at Fort Buchanan, Puerto Rico, the same official who administered the nonjudicial punishment.

6.  The applicant’s NCOER for the period March 1996 through February 1997 shows that he was the NCO in charge (NCOIC) of contracting, assigned to Headquarters Company, USAG, and that he was rated as fully capable by his civilian rater, a contract specialist.  His senior rater, the deputy installation commander, had not the required time to rate him.  His reviewer was the installation commander.   

7.  The applicant’s six ratings subsequent to February 1997 while serving in military police units at Fort Irwin, California and with the 1st Infantry Division in Germany, have been outstanding, with top block ratings by his rating officials and comments to the effect, “select for the Advanced NCO Course (ANCOC) now and promote now.”

8.  On 1 August 1996, the applicant’s commanding officer, Major “G” informed the applicant that she was considering whether he should be punished under Article 15, UCMJ, for willfully disobeying a lawful command from her (Major “G”) to report back to the command group at building 399 at 1530 hours on 13 June 1996; for failure to go to the time prescribed to his appointed place of duty on    13 June 1996, the command group, building 399; for dereliction in the performance of his duties in that he willfully failed his routine patrolling on or about 24 May 1996 from about 1615 hours to about 1645 hours; and for failing to obey a lawful order by wrongfully operating a government vehicle to his quarters and transporting his wife to a retail outlet store. 

9.  In a 13 August 1996 memorandum to Major “G,” addressed to her as the PMO at Fort Buchanan, the applicant’s defense counsel addressed each offense that the applicant was charged with -

•	The applicant could not have disobeyed the order issued by her, in that on 12 June 1996, he received directions from Mr. “R,” the civilian executive officer, to report to building 399, and that he and PFC “D” should be there at approximately 1530 to perform the paint detail.  Counsel stated that he interviewed a witness to verify that information.  Counsel stated that the directions of Major “G” might have been explicit, but those [passed on] from Mr. “R” were not so explicit. 
•	The applicant did go to his appointed place of duty within the time prescribed by Mr. “R.”
•	The allegation that the applicant was derelict in his patrolling duties on     24 May 1996 is multiplicious with the fourth allegation.  He stated that allegations three and four describe substantially the same misconduct in two different ways, and that because both describe one misconduct, the applicant’s use of a patrol car in violation of a lawful written order, the allegation of dereliction of duty should be dismissed. 
•	In order for a soldier to have committed a violation of the failure to obey lawful written orders, counsel stated that order must be a punitive order.  Since he did not have access to the Fort Buchanan memorandum, he was not certain that the order was punitive.  Counsel stated, however, that the applicant should not have received nonjudicial punishment because, during his investigation, he discovered that patrol cars were routinely used for “courtesy patrols.”  Additionally, there were instances where soldiers were asked by NCOs to pick up family members and transport them to the military police office.  Counsel stated that although not a defense, the evidence shows that the practice was widespread and ongoing, but not punished.  Consequently, it is unfair to punish the applicant for his actions. An oral reprimand would suffice for punishment.               

10.  On 14 August 1996 the applicant received nonjudicial punishment for the four counts of misconduct.  

11.  On 19 August 1996 the applicant appealed.  He stated:                               
•	that Major “G” never gave him or PFC “D” any order on 12 June 1996 to be back the next day at 1530 hours, but that on the first day of painting he was instructed by Major “G” that he would receive his instructions from Mr. “R.”  That person told him to come back the next day around 1530 hours, but not to start painting until all the civilians had left the building.  He stated that those instructions were witnessed by “W,” the command driver. The applicant took exception to the 13 June 1996 memorandum from   “Maj G” to the applicant’s first sergeant and company commander, in which she stated that she personally gave an order to the applicant and to PFC “D” to report to the command group at 1530 hours,13 June 1996.       
•	that on 13 June 1996 he and PFC “D” were late, but did report at approximately 1540 hours.  He explains the reason for his lateness in his appeal.                                                                                                          
•	that on 14 May 1996 he did pick up his wife [in the patrol car] from her quarters and they both made an appointment at the Staff Judge Advocate (SJA) office.  He stated that his wife was distraught over their separation, and would not drive the [their] car because he had gained possession of the car in the separation agreement.  He stated that he had permission from his desk sergeant for the appointment.  He stated that he was not dispatched during the time that he was at the SJA office because the desk sergeant knew of his appointment.  He stated that after the appointment he dropped his wife off at the shopette.  He drove by the post exchange, saw Major “G’s” car, and knowing that the desk sergeant was trying to locate her, went into the post exchange and so notified her.  When he returned to the MP station he was told to turn in all his equipment and to stand by.  He had no idea why he was relieved.                                           
•	that the use of patrol cars for “courtesy patrols” was common.  He stated that he did not understand why he was being used to make such a severe example if the action had been allowed in the past.  He provided copies of seven statements from soldiers who attested to that fact.  He stated that he was counseled by Major “G” on the fact that he could no longer work as an MP officer, but did not understand why.  He had not conducted himself in such a way to bring discredit upon the MP Corps.     

12.  Included with his appeal is a copy of a 13 June 1996 memorandum from Major “G,” then the Deputy Installation Commander, to the applicant’s first sergeant and company commander, requesting that the applicant and PFC “D” receive disciplinary action under the UCMJ for not reporting to the command group at 1530 hours on 13 June 1996 to continue painting as personally ordered by her on 12 June 1996.  She stated that they reported after she contacted Headquarters Company at approximately 1545 hours on 13 June 1996.  

13.  He included a copy of a statement from PFC “D” who stated that he never received an order from Major “G” on 12 June 1996 and that when the applicant and he reported to Major “G” she said that they would be receiving instructions from Mr. “R.”

14.  Army Regulation 27-10, chapter 3, implements and amplifies Article 15, UCMJ, and Part V, MCM.  It states, in pertinent part, that a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment.  Use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inappropriate.  Nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, immaturity, and similar deficiencies.  A commander will personally exercise discretion in the nonjudicial process.  Any commander is authorized to exercise the disciplinary powers conferred by Article 15.

15.  A commander’s decision whether to file a record of nonjudicial punishment on the performance fiche of a soldier’s official military personnel file (OMPF) is as important as the decision relating to the imposition of nonjudicial punishment itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust , and responsibility.  In this regard, the imposing commander should consider the soldier’s age, grade, total service, and the fact that the filing decision is not subject to direct appeal.  However, the interests of the Army are compelling when the record of nonjudicial punishment reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct or lack of integrity, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be field in the peformance fiche.   

16.  Part V, Nonjudicial Punishment Procedure, of the MCM, states in pertinent part that nonjudicial punishment may not be imposed for offenses which were committed more than 2 years before the date of imposition.  

CONCLUSIONS:

1.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at nonjudicial punishment.  

2.  Although the applicant states that he was never issued an order by Major “G” to report to the command group at a specific time and date, he accepted nonjudicial punishment for not complying with that order.  Hence, it would appear that by accepting the punishment, the applicant acknowledged his noncompliance with the order.     

3.  Furthermore, the applicant also acknowledged transporting his wife in a military vehicle on unofficial business.  Although evidence exists that transporting individuals in military vehicles, so-called “courtesy patrols,” was a common practice, this did not make it right.  The applicant knew, or should have known, that this practice was improper.

4.  The nonjudicial punishment 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, notwithstanding the exhortations by counsel on behalf of the applicant.  

5.  However, the Board notes that the applicant, although apparently relieved from his military police duties in May 1996, did not receive a relief for cause NCO evaluation report; however, he was assigned to the installation contracting office. The Board also notes that the nonjudicial punishment action was requested by Major “G,” then the deputy installation commander, to the applicant’s commanding officer on 13 June 1996 for failure to comply with her order to report to the command group on that date.  At that time there was no mention of a request for punishment for dereliction of duty or for disobeying a lawful order [the Fort Buchanan memorandum]; albeit the request might have already taken place.  
6.  Nonetheless, approximately a month and a half after her 13 June 1996 request, Major “G” herself decided to administer nonjudicial punishment, both for the 13 June 1996 infractions, and the earlier 14 May 1996 infractions.            

7.  While there does not appear to be any legal basis for removing the record of nonjudicial punishment there are equitable reasons for its transfer to the restricted portion of his OMPF.  It would appear to this Board that in this instance, the failure to obey a lawful command, that is, the failure to go at the time prescribed to appointed place of duty; and the failure to go, etc., could well be construed as one offense.  Furthermore, the addition of the 14 May 1996 infractions, albeit wrongdoings, seem to be an afterthought - a piling on.  It took the commander, Major “G” one month and a half to decide to  punish the applicant for the infractions in June 1996, and two and one half months to decide to punish the May 1996 infractions – incidents that she was intimately familiar with, and which should have required immediate action by a commander.    

8.  Therefore, considering the circumstances involving the punishment, the nature of the offenses involved, and the applicant's commendable performance during the past several years, it appears that the subject punishment has served the purpose for which it was intended.  In the interest of justice, it would now be appropriate to remove the record from the performance section of his OMPF.  To fail to do so would be inequitable and unjust.  The action, however, should not be considered retroactive and, therefore, does not constitute grounds for referral to a Special Selection Board for reconsideration of any previous nonselections.

9.  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 transferring from the performance fiche to the restricted fiche of the OMPF of the individual concerned the record of proceedings dated 14 August 1996 and all documents related thereto.  
 
2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__RVO__  __RJW__  __KYF___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O'Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID	AR2002072252	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020926	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.