MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 December 2001
	DOCKET NUMBER:   AR2001058436

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Eric N. Andersen		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:  The removal of a Record of Nonjudicial Punishment (NJP) (DA Form 2627) and all associated documents from the restricted fiche of his Official Military Personnel File (OMPF).

APPLICANT STATES:  That NJP was imposed against him on 11 April 1997 and he immediately appealed the punishment.  His appeal was granted on 28 April 1997.  He goes on to state that the battalion commander found that reasonable doubt existed as to whether he had committed the offense and Army Regulation (AR) 27-10, paragraph 3-18 provides that punishment cannot be imposed and that NJP must be set aside if there is reasonable doubt as to whether a soldier has committed an offense.  Accordingly, the DA Form 2627 should not have been filed in his OMPF.

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

He enlisted on 25 March 1993 for a period of 3 years and training as an M1 Tank Turret Repairer.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 1 June 1999.

On 11 April 1997, while serving in the pay grade of E-5 in an Engineer Company that was assigned to Germany and deployed to Bosnia, NJP was imposed against the applicant for being derelict in the performance of his duties.  His punishment consisted of a forfeiture of pay that was suspended until 9 October 1997.  The commander directed that the DA Form 2627 be filed on the restricted fiche of the applicant’s OMPF.

The applicant appealed the punishment to the battalion commander asserting that he was not guilty of the offense.  The battalion commander granted his appeal and indicated on the DA Form 2627 that there was reasonable doubt that offense was committed.

The DA Form 2627 and a copy of his appeal are filed on the restricted fiche of the applicant’s OMPF.  There is no evidence of any other disciplinary action being taken against the applicant.

AR 27-10 prescribes the guidelines for the filing of NJP.  It states, in pertinent part, that the decision to file the original DA Form 2627 on the performance or restricted fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627.

Paragraph 3-18 of that regulation provides, in pertinent part, that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the soldier committed the offense.  If the commander decides to impose the punishment he or she will announce the punishment to the soldier and explain the soldier’s appellate rights and procedures.

Paragraph 3-23 of that regulation provides, in pertinent part, that the imposing commander, a successor in command or the next superior authority may remit, mitigate, suspend, vacate or set aside punishments imposed under NJP.

Paragraph 3-37 of AR 27-10 provides the filing determination for the DA Form 2627 and associated documents.  It provides, in pertinent part, that the restricted fiche of the OMPF is that portion of the OMPF that contains information not normally viewed by career managers or selection boards.  

Paragraph 3-42 provides, in pertinent part, that in cases where punishment has been wholly set aside, the Record of NJP (DA Form 2627) and all associated documents will be filed on the restricted fiche of the OMPF.

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.  It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The punishment was not disproportionate to the offense and there is no evidence of any violations of the applicant’s rights.   

3.  The applicant’s contention that the record of NJP should not be filed because his appeal was granted, has been noted by the Board and appears to be without merit.  Although the appellate authority found reasonable doubt as to whether the offense was committed and had the authority to set aside the punishment, the imposing commander apparently did not find that such was the case and was within her authority as a commander to impose punishment as she saw appropriate.

4.  The applicant properly exercised his rights of appeal and was successful in his appeal.  However, the applicable laws and regulation provide that a properly imposed record of NJP will be filed in accordance with the filing instructions of the imposing commander.  Accordingly, the record of NJP was properly filed on the restricted fiche of the applicant’s OMPF and he has failed to show through the evidence submitted with his application or the evidence of record that such was not the case.
5.  While the Board understands the applicant’s concerns, the Army has an interest in maintaining such documents, and the applicant has not shown sufficient reasons why it should not remain a matter of record, even after considering his entire record.

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

___jhl ___  __mkp __  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058436	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/12/04	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  281	126.0400/REM NJP	
2.		
3.		
4.		
5.		
6.