MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            19 June 2003                   
	DOCKET NUMBER:    AR2003087851

	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. John N. Slone		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. William D. Powers		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 20 December 2002 nonjudicial punishment (NJP) action imposed upon him be overturned; that the Record of Proceedings Under Article 15, UCMJ (DA Form 2627) be removed from his Official Military Personnel File (OMPF); that he be reinstated to the rank and pay grade of staff sergeant/E-6 (SSG/E-6); and that he receive all back pay due as a result.    

APPLICANT STATES:  In effect, that there was an insufficient basis to support the NJP action imposed upon him.  He claims that the preponderance of the evidence shows that he did not willfully make the false official statements on which the NJP action was based.  The applicant provides the enclosed seven page statement for the Board, which contains his view of the facts and circumstances surrounding the NJP action. 

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

As of the date of this application, he was still serving on active duty at Fort Bliss, Texas, in the rank and pay grade of sergeant/E-5 (SGT/E-5).  

On 11 December 2002, while he was serving as a SSG/E-6 at Fort Bliss, Texas,  the applicant was notified that his brigade commander was considering whether he should be punished under Article 15 of the UCMJ, for making false official statements on or about 12 September and 12 November 2002.  

On 19 December 2002, the applicant elected not to demand a trial by 
court-martial, and instead chose for the matter to be handled by the brigade commander at a closed hearing.  

On 20 December 2002, the applicant accepted NJP.  His punishment included a reduction to SGT/E-5, a forfeiture of $1,055.00 per month for two months, and extra duty for 45 days.  The applicant elected to appeal the punishment and to submit additional matters for consideration. 

On 23 December 2002, the applicant submitted his appeal, and presented the facts and circumstances he now provides to this Board to the appeal authority for consideration.  

On 9 January 2003, the Staff Judge Advocate (SJA) considered the applicant’s appeal and opined that the proceedings were conducted in accordance with the law and regulations.  Counsel further stipulated that the punishment was appropriate and not excessive.  

On 10 January 2003, the appeal authority considered all matters presented and denied the applicant’s appeal.  

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 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 that clearly and affirmatively injured the substantial rights of the soldier.  

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 NJP action should be overturned and his rank should be restored because the preponderance of the evidence shows that he did not make false official statements.  However, it finds insufficient evidence to support this claim.  

2.  By regulation, in order to set aside NJP properly imposed there must be a determination that, under all the circumstances of the case, the punishment resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the soldier.  Although the applicant has presented his view of the facts and circumstances surrounding the events that led to the NJP action, his version of the events is not corroborated by the evidence of record.  Thus, the Board finds no clear injustice related to the NJP action in question.  

3.  The evidence of record confirms that the NJP accepted by the applicant on 
20 December 2002 was accomplished in accordance with the applicable regulation.  In addition, his appeal and the additional matters he presented were considered and denied by the proper appellate authority.  Lacking evidence to the contrary, 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.  

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

JS____  __WDP___  __LEM__  DENY APPLICATION

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

INDEX

CASE ID	AR2003087851	
SUFFIX		
RECON		
DATE BOARDED	2003/06/19	
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.