PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:          30 OCTOBER 2003                    
	DOCKET NUMBER:  AR2003087976

	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. Curtis L. Greenway		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Larry C. Bergquist		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 his records of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), be expunged from his Official Military Personnel File (OMPF).

3.  The applicant states that it has been 16 years since he received the punishment and the intent of the punishment has been served.  Both offenses for which he was punished occurred during his first three years in the Army.  He was in the middle of a divorce and drank to ease the pain.  He has since turned his life around.  He opted to do nothing concerning the records of punishment because he did not want to hide anything from the sergeant first class promotion board; however, with his retirement date pending (1 November 2003), he feels that those records should be expunged.  He provides copies of his evaluation reports that show that he is a good leader.

4.  The applicant’s military records show that he enlisted in the Army for 4 years on 25 October 1983 and has remained on continuous active duty.  He has completed numerous military courses of instruction, to include the Primary Leadership Development Course in 1988, Army Precommission Course in 1989, and the Basic Noncommissioned Officer Course in 1992.  The applicant was promoted to the rank of sergeant in 1989 and staff sergeant on 1 September 1997.  He has received multiple awards of the Army Achievement Medal, the Army Commendation Medal, and the Army Good Conduct Medal.

5.  The applicant's NCO evaluation reports show that his rating officials considered him an outstanding soldier.

6.  On 17 June 1986, the applicant, then a specialist four (pay grade E-4) received nonjudicial punishment for hitting four individuals, for being drunk and disorderly, and for resisting arrest.  He was sentenced to be reduced to pay grade E-3 and to a forfeiture of $408.00 for 1 month, with the forfeiture suspended for 6 months.  The applicant's commanding officer directed that the record of punishment be placed in the restricted fiche of his OMPF. 

7.  On 4 November 1986 the applicant received nonjudicial punishment for being drunk and disorderly on 4 October 1986.  He was sentenced to be reduced to pay grade E-2, to extra duty, and to restriction.  He appealed.  His appeal was denied.  The suspension of his punishment of a forfeiture of $408.00 for 1 month was vacated.  The applicant's commanding officer directed that the record of punishment be placed in the performance fiche of his OMPF.  

8.  The applicant's OMPF shows that the records of both Article 15 punishments are in his restricted fiche, and that the record of the punishment that he received on 4 November 1986 is also in his performance fiche.

9.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment (NJP) 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.  It also provided that the officer imposing NJP determines whether the report of NJP (DA Form 2627) is to be filed on the individual's restricted or performance fiche.

10.  Army Regulation 600-8-104 states, in pertinent part, that the performance fiche of the OMPF is used for filing performance, commendatory, and disciplinary data. It states that the restricted fiche is used for historical data that may normally be improper for viewing by selection boards or career managers.  Its release is highly controlled.  The restricted fiche is intended to provide an unbroken historical record of an individual’s service while protecting the interests of both the soldier and the Army.

11.  That regulation also states that once placed in the OMPF, a document becomes a permanent part of that file and will not be removed or moved to another part of the fiche unless directed by certain agencies, to include this Board. 

CONCLUSIONS:

1.  The applicant’s military service from 1988 has been commendable as evidenced by his evaluation reports, the awards that he has received, the training he has completed, and by his promotion to his current rank.  He received the nonjudicial punishments 17 years ago, and the intended effect of those punishments has been served.  Nonetheless, the records should be maintained, as they are now, in the restricted fiche of his OMPF.  However, in the best interest of justice, the record of the punishment that he received on                      4 November 1986, contained in both his restricted and performance fiche, should be stricken from the performance fiche of his OMPF.

2.  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 expunging from the performance fiche of the applicant's OMPF the record of proceedings under Article 15, UCMJ, that he received on 4 November 1986. 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__CLG __  __EWL__  ___LCB__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Curtis L. Greenway _____
		        CHAIRPERSON

INDEX

CASE ID	AR2003087976	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031030	
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.	134.00	
2.		
3.		
4.		
5.		
6.