MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 July 2002                  
	DOCKET NUMBER:   AR2002072271

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		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 a 10 August 1992 DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), be purged from his restricted fiche.

APPLICANT STATES:  In effect, that the Article 15 was not unjust or in error.  He admits that the actions that led to the Article 15 were a grave mistake on his part but believes he has paid for this mistake.  He states that there were extenuating circumstances involved but that he accepts the blame for the incident, that the incident cost him his marriage, he learned from his mistake, accepted his punishment, and moved on to better the Army and himself.  He asks that the Article 15 be purged from his record, as he believes that it will adversely affect him for future promotions and assignments.  

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

The applicant enlisted in the Reserve and entered active duty for training (ADT) on 1 February 1989.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 95B (Military Police (MP)), with a release from ADT on 20 June 1989.  The applicant enlisted in the Regular Army and entered active duty on 3 May 1990.  He has had continuous service since this enlistment. 

On 10 August 1992, the applicant, then a sergeant (E-5), received nonjudicial punishment (NJP) for choking his wife.  The applicant's company commander imposed a forfeiture of $277 per month for 1 month and 14 days restriction.  $200 of the forfeiture and 7 days of the restriction were suspended.  The DA Form 2627 was directed to be filed in the applicant's restricted fiche.  The applicant did not appeal the punishment.

The applicant attained his current rank, staff sergeant (E-6), on 1 March 1996.  Other than the 1992 NJP, there are no negative or derogatory entries in the applicant's record.

The applicant's raters have consistently described his performance as meeting or exceeding standards in all areas.  He has consistently been recommended to be promoted ahead of his peers.  

His duty assignments have shown that he has been given progressively more responsible positions.  He has been recommended for advanced training and for assignment as a drill instructor.  

His current assignment is Operations Sergeant for the Provost Marshal Office and noncommissioned officer in charge (NCOIC) for Military Police Information Management System at Fort Buchanan, Porto Rico.

The applicant's awards and decorations include but are not limited to the Meritorious Service Medal, two Army Commendation Medals, three Army Achievement Medals, three Good Conduct Medals, the Joint Services Commendation Medal, the North Atlantic Treaty Organization (NATO) Service Medal (for service in the former Yugoslavia Republic), two Department of the Army Certificates of Achievement, eleven local command Certificates of Achievement, four local command Certificates of Appreciation, and a Special Certificate of Achievement from the White Sands Missile Range for being selected Soldier of the Month.

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 nonpunitive 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.

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 applicant's overall record of service and his accomplishments, as reflected by his personal decorations, his selection for promotion and assignments subsequent to his offense, are noteworthy.  However, these factors do not demonstrate that there is an injustice in the fact that the record contains potentially damaging material, which is the direct consequence of his past behavior.  While the applicant has demonstrated strength of character by overcoming that setback, the removal of the NJP would, in effect, place him on a level playing field with contemporaries, whose careers have not been marred by incidents of such inappropriate behavior.  

3.  The Army has an obligation to maintain a complete and accurate record of an individual's service.  The placement of the record of NJP on the restricted fiche enables the Army to maintain that historical record without unduly jeopardizing the individual's career. 

4.  Further, the applicant has provided no evidence that the retention of the Article 15 in his restricted fiche has or will adversely affect any future promotion or assignment. 

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

__FNE __  __MHM__  ___DPH_  DENY APPLICATION

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

INDEX

CASE ID	AR2002072271	
SUFFIX		
RECON		
DATE BOARDED	20020716	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.04	
2.		
3.		
4.		
5.		
6.