RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 JULY 2004                  
	DOCKET NUMBER:   AR2003096507

	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. Samuel Crumpler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Mark Manning		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that the record of nonjudicial punishment under    Article 15, Uniform Code of Military Justice (UCMJ), in the restricted portion of his OMPF (Official Military Personnel File) be expunged from his OMPF.

2.  The applicant states that the Article 15 was set aside by the Commanding General, United States Army Japan and 9th Theater Support 
Command (USARJ/9th TSC) because it was unjust.  Furthermore, in so doing, the commanding general intended for the entire record of the proceedings to be expunged from his OMPF. 

3.  He states that he has given 10 years of faithful service to the Army.  He comments on his assignments, awards, evaluation reports, and education.  He states that should the record remain in his restricted file, it would have an unjust effect on the remainder of his military career and post-military employment.  

4.  The applicant provides a copy of a 24 June 2003 memorandum from the CG, USARJ/9th TSC to this agency; a copy of a 25 January 2003 memorandum for record from that officer concerning the setting aside of Articles 15 for the applicant and three other Soldiers; a copy of a 25 January 2003 record of supplementary action under Article 15; a copy of the 24 July 2002 record of proceedings under Article 15, UCMJ; a copy of the applicant's appeal; and copies of evaluation reports for the period ending in May 2002 and May 2003.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Army for 3 years on 30 July 1993 and has remained on continuous active duty.  He trained as a military policeman, completed the basic NCO (noncommissioned officer) course and was promoted to staff sergeant on 26 March 1999.  In January 1998 he completed a military working dog (MWD)	course.  His NCO evaluation report for the period ending in September 1998 shows that he was assigned as a explosive detector dog handler with the 57th Military Police Company in Korea.  From 1999 to 2001 he was a squad leader/MWD trainer and later an instructor/writer at Lackland Air Force Base in Texas.

2.  The applicant completed a MWD Trainer Course in May 2001 and a MWD
Trainer/Supervisory Course in February 2002.  He has received three awards of the Army Achievement Medal, three awards of the Army Good Conduct Medal, an award of the Army Commendation Medal, and an award of the Air Force Commendation Medal.  His evaluation reports show that his rating officials considered him an outstanding NCO.

3.  An evaluation report for the nine-month period ending in May 2002 shows that he was a kennel master with the 88th Military Police Detachment at Camp Zama, Japan.  That report shows that his rating officials considered his performance outstanding, with the comment that he was selected to perform security and explosive detector dog missions for the Commander in Chief and Chief of Staff. 

4.  On 24 July 2002 the applicant received nonjudicial punishment under       Article 15, UCMJ, for dereliction in the performance of his duties, in that he willfully failed to return the canines explosives scent kit (CESK) to the 374th Maintenance Squadron Munitions Flight Munitions Storage Area, Yokota Air Base Japan, as it was his duty to do so.  The punishment imposed was forfeiture of $545.00 pay and extra duty for 14 days.  The applicant's commanding officer directed that the record of nonjudicial punishment be filed in the restricted fiche of his OMPF.  

5.  The applicant appealed.  In doing so, he stated that approval had been granted on 15 April 2002 for three explosive aids stored at Yokota to be brought to Zama for use in training and certification; however, attempts in early and mid May 2002 to return the explosive aids were problematic, in that transportation was not available.  He stated that the kit was to be returned on 31 May 2002; however, the arrangements fell through.  On 1 June 2002 the provost sergeant found the kit at the kennels.  He received nonjudicial punishment and was removed from his position as kennel master and from working in the kennels.  All other NCOs who worked in the kennel also received nonjudicial punishment.   

a.  The applicant commented on the problems in obtaining CESK in order to certify and recertify explosive detector dogs (EDD) and MDWs.  The difficulty in obtaining assistance from the Yokosuka kennels and Yokota's command intensified the difficulty in assisting them to return the explosive aids without getting into any trouble.  He stated that they had returned the aids without getting them into trouble.      

b.  He stated that he neither willfully nor negligently refused to return the aids, and that coordination to do so was constantly being made.  Permission had been granted to have and use the aids, and that the aids were constantly being used even after certification in order to continue to build the EDD teams' confidence and competence.  

c.  He stated that he had been trying to comply with a conflicting mission, keeping the kennels up and running and the dogs certified and trying to comply with a regulation which would not allow completion of mission requirements.  He stated that he had been directed on numerous occasions to perform missions with EDDs that had not the proper training and at times the proper certification.  Requests for kits and a storage facility had gone essentially without reply and compliance, resulting in problems for the command.  Responsibility for violations was placed solely on himself, the kennel master/section supervisor.  

d.  He was informed that he demonstrated poor judgment, and a serious lack of integrity; however, he had tried his best to accede to the wishes of the command.  His command told him to obtain the explosive aids and to train with them, and when coordination could not be made to return the aids, he was charged with dereliction of duty and removed from his position.  He stated that he was a dedicated Soldier, motivated to do his job and could have still returned to his prior position and worked to fix the logistical problems and inherently conflicting missions.  He stated, that in accepting the punishment, the command should bear in mind that his dedication to duty was unwavering and that he accepted full responsibility for his actions.  
  
6.  On 1 August 2002 a judge advocate stated that he had considered the appeal and it was his opinion that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate to the offense committed.  On 2 August 2002 the Commander, 35th Supply and Services Battalion denied the applicant's appeal.

7.  The applicant's NCOER for the 12 month period ending in May 2003 shows that his rating officials considered him an outstanding Soldier who should be promoted to sergeant first class and selected for the advanced course immediately.  The report indicated that he was awarded a coin for excellence from the USARJ commander and command sergeant major for flawless security operations for visiting dignitaries, that he developed the MWD sections' first explosive real world training and deployment plans for supporting the Department of Defense, the United States Army Pacific, USARJ, and host nation, and that he deployed and prepared two EDD teams in support of Operation Enduring Freedom.  His senior rater stated that he was in the top one percent of NCOs in the Army.

8.  On 25 June 2003 the Commanding General, United States Army Japan/9th Theater Support Command set aside the applicant's punishment that he received under Article 15, UCMJ.

9.  In a memorandum of record of that same date, he stated that he reviewed a detailed 15-6 report, consulted with the Inspector General, the Staff Judge Advocate, and the appellate commander, and determined that a clear injustice existed in the imposition of nonjudicial punishment to the applicant and three other Soldiers.  He set aside the punishment for all four.

10.  He stated that the errors and omissions documented in the reports of nonjudicial punishment resulted not only from the acts of the individual Soldiers concerned but other more senior members of the command.  He stated that unfortunately, the evidence demonstrated that the Soldiers were given a mission without the necessary assets or resources to accomplish it, and due to their inexperience and poor judgment, they chose to violate command and unit policies.  He stated, however, that he was convinced they had no criminal intent, but took actions in an effort to accomplish mandatory training and enable their detachment to maintain its status as mission ready and capable.   

11.  On 24 June 2003 the Commanding General, USARJ/9th TSC requested that this Board grant the applicant's request to expunge the record of the Article 15 proceedings from his OMPF.  He stated that although the record was moved to the restricted portion by his previous action, he intended for it to be completely expunged because it was such a clear injustice to the Soldier.  He recently learned that the record was not expunged, but only moved to the restricted side.  He stated that although the record was in the restricted side of the OMPF, it would continue to have a negative influence of the applicant's career and post-Army employment. 

12.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice, to include nonjudicial punishment under Article 15, UCMJ, and states in pertinent part, that use of nonjudicial punishment is proper in all cases involving minor offense in which nonpunitive measures are considered inadequate or inappropriate.  Nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures.

13.  Paragraph 3-3 of that regulation states in pertinent part that 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.  It goes on to state that commanding officers have the authority to give admonitions or reprimands either as an administrative measure or as nonjudicial punishment. 

14.  Paragraph 3-6 states in effect, that the commander imposing the punishment also determines whether the record of the punishment is filed in the performance or the restricted fiche of the Soldier's OMPF.

15.  Paragraph 3-28 states in pertinent part that the commander who imposed the punishment, a successor-in-command, or a superior authority may set aside all punishment imposed under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  Clear injustice means that there exists an unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion of the Soldier. 

16.  Army Regulation 600-8-104 provides for filing of records of proceedings under Article 15 in either the performance or the restricted fiche as directed by the commander issuing the punishment.  It also states that if the Article 15 is wholly set aside and is filed on the performance fiche, move it to the restricted fiche, and file the DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ) directing the action on the restricted fiche.  It states that if the Article 15 is filed on the restricted fiche, also file the DA Form 2627-2 setting it aside on the restricted fiche.

17.  The above-mentioned regulation also states that the restricted fiche is used for historical data that may normally are improper for viewing by selection boards or career managers.  The release of information on this fiche is controlled.  Documents on the restricted fiche are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; record investigation reports; record appellate actions; and protect the interest of the Soldier and the Army.

18.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from a fiche or moved to another part of the fiche unless directed by certain agencies, to include the Army Board for Correction of Military Records (ABCMR), the Department of the Army Suitability Evaluation Board (DASEB), and Army appeal boards.

19.  Army Regulation 600-37 and Army Regulation 27-10 provide for the transfer of records of nonjudicial punishment from the performance fiche of the OMPF to the restricted fiche.  However, claims that an Article 15 is untrue or unjust will be adjudicated with the ABCMR.  

DISCUSSION AND 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.  The applicant's commanding officer, after hearing the applicant out, chose to administer nonjudicial punishment to him.  By accepting the punishment, the applicant acknowledged that he did wrong – that he was guilty of the charged offense.  He appealed.  His appeal was denied.  The record of the proceedings was filed in the restricted portion of the applicant's OMPF.     

3.  The Commanding General, USARJ/9th TSC is mistaken concerning the filing of the record of nonjudicial punishment.  The record was not moved to the restricted portion of the applicant's OMPF because of his action in June 2003 in setting aside the punishment, but already had been filed in the restricted fiche, upon the direction of the applicant's commanding officer in July 2002 when he administered the punishment.  As noted above, when a record of nonjudicial punishment is filed in the restricted fiche of a Soldier's OMPF, the DA Form 2627-2 setting aside the punishment is filed on the restricted fiche with the record of nonjudicial punishment. 

4.  The applicant contends that the USARJ/9th TSC Commanding General, by setting aside the punishment, intended for the entire record to be expunged from the OMPF.  That officer himself stated that he intended for it to be completely expunged.  The statements are noted; however, whereas he has the authority to set aside a punishment, which he determines to be unjust, he has no authority to direct that the record of nonjudicial punishment be expunged from the applicant's OMPF.  Setting aside the punishment does not equate to expunging the record of punishment from the applicant's OMPF.  The authority rests with this Board to remove the record from a Soldier's OMPF.  

5.  The applicant's contention that the record of his punishment would have a detrimental effect on his Army career and post-career employment is highly speculative and unlikely. The record and the document setting aside the punishment are permanently kept to maintain an unbroken, historical record of his service, conduct, appellate actions, etc., and are necessarily maintained to protect both himself and the Army, and are tightly controlled.  The release of records in that fiche is highly improbable.     

6.  The applicant's contention that what he did was necessary in order to accomplish his mission, a mission given to him without the necessary resources or assets to do so, is noted, as is the statements provided by the Commanding General, USARJ/9th TSC, in his independent affirmation.  Nonetheless, the applicant apparently stored explosive devices in a dog kennel, which was under his supervision, a violation of command policy – a fact noted by the USARJ/9th TSC Commanding General.  The applicant had no authority to do so and acted  improperly, without the knowledge of his commanding officer.  Consequently, the applicant's commanding officer exercised his authority to punish the applicant for his indiscipline.  There is no error or injustice in the imposition of this punishment, nor is there an injustice in the record being retained in the applicant's OMPF.  

7.  Therefore, the applicant's request to expunge the record of nonjudicial punishment from his OMPF is not granted.  
        
BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SC __  ___SK __  ___MM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		___ Samuel Crumpler____
		        CHAIRPERSON

INDEX

CASE ID	AR2003096507	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040713	
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.	126.04	
2.		
3.		
4.		
5.		
6.