MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  5 June 2003
	DOCKET NUMBER:  AR2003089407

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Thomas B. Redfern		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 his Article 15 dated 27 October 1997 be removed from the restricted portion of his Official Military Personnel File (OMPF).

APPLICANT STATES:  That he believes the Article 15 has served its purpose in teaching him to be careful of all his actions.  It is keeping him from becoming a drill sergeant.  He has been a model soldier since the incident and has been promoted twice since the incident.

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

He enlisted in the Regular Army on 16 October 1991.

On 27 October 1997, while a Sergeant, E-5, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for striking another Sergeant, E-5 in the mouth with his closed fist.  His punishment was a forfeiture of $176.00.  The Article 15 was directed to be filed in the restricted portion of his OMPF.

On 19 December 1997, the applicant was promoted to Staff Sergeant, E-6.  He apparently was promoted to Sergeant First Class, E-7 sometime after January 2003.

Army Regulation 27-10 (Military Justice) states, in pertinent part, that enlisted soldiers (E-5 and above) and officers may petition the Department of the Army Suitability Evaluation Board for transfer of records of nonjudicial punishment from the performance to the restricted portion of the OMPF.  To support the request, the person must submit substantive evidence that the intended purpose of the Article 15 has been served and that the transfer is in the best interest of the Army.

Army Regulation 614-200 (Enlisted Assignments and Utilization Management), chapter 8, section III (Drill Sergeant Program), paragraph 8-15b(10) states that a soldier being considered for drill sergeant duty must have no record of disciplinary action or time lost or letter of reprimand filed in the OMPF during the current enlistment or in the last 5 years, whichever is longer (does not include Article 15s directed for filing in the restricted portion of the OMPF).  Paragraph   8-15b(17) states that the U. S. Total Army Personnel Command (PERSCOM) will conduct a thorough background screening.  Soldiers with Type II reports of unfavorable information disqualifiers will be excluded from consideration for drill sergeant duty for 5 years from the date of the incident.  Paragraph 8-15b(19)(b) states that assault (other than of a subordinate, spouse, or child) is a Type II 

disqualifier.  Paragraph 8-15b(21) states that PERSCOM will screen Department of the Army Inspector General records, personnel security and criminal records indexed in the Defense Clearance Investigation Index, OMPF restricted files, and other records.

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.  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.

2.  The Board accepts the applicant's contention that the Article 15 has served its purpose and notes that he has been promoted from E-5 to E-7 since the incident. However, a finding that an Article 15 has served its purpose would normally only result in its being moved from the performance fiche to the restricted fiche.  The applicant's Article 15 was always filed in his restricted fiche.  Unless there is evidence to show the Article 15 was improperly issued/filed in the first place, the Board concludes that equity does not demand it be removed from his restricted fiche.  The applicant has not shown nor has he contended that it was improperly issued/filed.

3.  The Board notes the applicant's contention that the Article 15 is hindering him from becoming a drill sergeant.  Based upon regulatory guidance, it appears the applicant's contention is not mistaken.  The incident for which he was given the Article 15 appears to be a Type II report of unfavorable information disqualifier which would exclude him from consideration for drill sergeant duty for 5 years from the date of the incident.  That 5-year period expired in October 2002.  

4.  The Board notes that PERSCOM is required to conduct a thorough background screening of more record sources than just the OMPF when considering a soldier for drill sergeant duty.  It is possible the incident can be discovered through screening one of the other sources.  Removal of the Article 15 from the applicant's restricted fiche possibly would not prevent the incident from being discovered.  

5.  It cannot be determined if the incident is still the sole reason the applicant is not being selected for drill sergeant duty.  In any case, the Board will not usurp PERSCOM's authority to select the best-qualified soldiers for this duty by removing the Article 15 from the applicant's records absent compelling evidence to show the Article 15 was improperly issued/filed in the first place.

6.  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

__ao___  ___kh___  ___tr_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003089407	
SUFFIX		
RECON		
DATE BOARDED	20030605	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.06	
2.		
3.		
4.		
5.		
6.