MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            12 April 2000                  
	DOCKET NUMBER:   AR1999029541

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis 		Member	
	Mr. James P. Stueve 		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 DA Form 2627, Record of Proceedings Under Article 15, UCMJ, dated 12 December 1998, be expunged from his Official Military Personnel File (OMPF)

APPLICANT STATES:  He defers to his legal counsel.  In support of his application, he provides:  a 7 July 1999 memorandum to the Board; a copy of a 2 April 1999 memorandum notifying him of a Department of the Army (DA) bar to reenlistment under the Qualitative Management Program (QMP); a copy of the subject DA Form 2627; a copy of an 18 November 1998 DA Form 3887, Rights Warning Procedure/Waiver Certificate; a copy of an 18 November 1998 DA Form 2823, Sworn Statement, from a master sergeant; a copy of an 18 November 1998 memorandum for record from a captain; a copy of a 9 November 1998 memorandum of acknowledgement that the applicant had read and understood US Army Forces Central Command—Saudi Arabia (ARCENT-SA) General Order Number 1; a copy of a 1st endorsement to an appeal of the applicant’s Article 15 signed by a lieutenant colonel; a copy of ARCENT-SA General Order Number 1, subject:  Prohibited Activities; a copy of a memorandum of agreement between the 335th Theater Signal Command and ARCENT-SA; a copy of a 335th Theater Signal Command Significant Activities Report for June 1999; a copy of Orders Number 149-01, dated 29 May 1998, pertaining to the applicant’s transfer to Saudi Arabia; a copy of an email message, dated 5 May 1999, subject:  GCMCA; and a copy of ARCENT-SA Policy Letter Number 16, dated 10 September 1998, subject:  Disposition Authority over UCMJ Offenses.

COUNSEL CONTENDS:  That the subject Article 15 punishment should be removed from the applicant’s records because:  (1) the general order he is accused of violating was invalid; (2) the general order did not apply to the applicant; and (3) the commander who imposed the punishment had no UCMJ authority over the applicant.

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

He is a staff sergeant.  At the time of the subject Article 15 punishment, he was a sergeant first class (his reduction was administrative in nature and not related to any disciplinary infraction) assigned to the 335th Theater Signal Command with duty in Saudi Arabia.  On 9 November 1998, he was given a copy of ARCENT-SA General Order Number 1 and told to read it and acknowledge that he read and understood it.  The General Order prohibited the “Introduction, possession, use, sale, transfer, manufacture or consumption of any alcoholic beverage” while in Saudi Arabia.  The applicant acknowledged the General Order on 9 November 1998.

On 18 November 1998, the applicant was found to be in possession of alcohol.  He was offered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, and accepted it.  On 12 December 1998, punishment was imposed (forfeiture of $1,100 per month for 2 months; restriction for 30 days, suspended) and the commander directed that the DA Form 2627 be filed in the Performance Fiche of the applicant’s OMPF.  He appealed and his appeal was denied.

In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) legal advisor.  The legal advisor opined that the General Order was a legal, enforceable general order; that the order was applicable to the applicant; and that the commander who imposed NJP on the applicant had the legal authority to do so.  The applicant was provided a copy of the advisory opinion and offered the opportunity to respond.  On 29 March 2000, applicant’s counsel responded by expressing surprise and disappointment with the legal advisory opinion and reiterating the original arguments that the General Order was invalid; that even if valid, it did not apply to the applicant; and that the commander who imposed NJP did not have UCMJ authority.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, 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 the aforementioned requirement.

2.  The applicant was stationed in Saudi Arabia in support of ARCENT-SA.  He acknowledged that he read and understood the ARCENT-SA General Order governing prohibited practices.  He then violated that order by possessing alcohol and was given NJP.  The ARBA legal opinion found the general order to be valid and applicable to the applicant.  It also found that the commander who imposed the punishment under the UCMJ was legally authorized to do so.

3.  The DA Form 2627 is valid and properly filed in the applicant’s OMPF.

4.  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

__rgh___  ___bje___  __jps ___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029541	
SUFFIX		
RECON		
DATE BOARDED	20000412	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	126.0400	
2.		
3.		
4.		
5.		
6.