MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           4 April 2002         
	DOCKET NUMBER:   AR2001065357

	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. W. W. Osborn, Jr. 		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Karen Y. Fletcher		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 the record of an 22 August 2001 nonjudicial punishment (NJP) imposed under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) be expunged from his Official Military Personnel File (OMPF).

APPLICANT STATES:  That he did not commit the offenses charged.  He argues that the three females trainees were friends and that two were roommates.  They conspired against him because he caused Private S____ to receive NJP.  Private S_____ started the investigation by claiming that the applicant had hugged her and grabbed her buttock in an empty room.  However, she initially reported that this incident had occurred in the drill sergeants’ office and none of the six soldiers who lived near the vacant room provided any substantiating evidence.  After Private S____ reported the alleged assault to the military police, she talked to the other two and they got their stories straight by delaying their interviews with the investigator.  The trainee who shared hall guard duty with Private D____ on 19 July 2001 did not confirm her story.  Previously he had to verbally counsel Private D____ about her lack of motivation.  The trainee who shared charge of quarters (CQ) duties with Private First Class (PFC) H_____ on 11 July 2001 was never interviewed and PFC H____ was on leave and did not appear at the NJP hearing.  

He submits numerous documents, including a partial copy of the Criminal Investigation Division (CID) Agent’s Investigation Report, a duty roster and a leave request/authorization for PFC H____ showing she had leave authorized from 27 July to 23 August 2001 and several statements of support from fellow noncommissioned officers (NCOs), including two first sergeants.  They all describe him as a competent and professional leader who has the highest possible standards.  One believes that the CID and the command should have put greater stock in the opinions of the cadre and less in the statements of the alleged victims.

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

The applicant, a Sergeant First Class (SFC) with approximately 12 years of continuous active duty, was serving as an advanced individual training drill instructor at Fort Gordan, Georgia when he was notified that the battalion commander was considering whether NJP should be imposed for violating Article 93, UCMJ by maltreatment of a subordinate female trainee by saying to her “Do you date Black men.”  “Do you tell your battle buddies everything including your dark, personal secrets”  “Are you going to change into your PT uniform and come back and see me.”  And “You should think about it and when you are ready just come and tell me.”  [Apparently additional charges were on a continuation sheet that is not of record.]

The applicant consulted with counsel and waived his right to demand a trial by court-martial.  He requested an open hearing and to have another person speak in his behalf and he indicated that matters in defense, mitigation and/or extenuation would be presented.

On 22 August 2001 the battalion commander imposed punishment consisting of forfeiture of $500 pay per month for 2 months and directed that the DA Form 2627 (Record of NJP Proceedings) be filed on the performance fiche of the applicant’s OMPF.

The applicant appealed the punishment to the brigade commander.  A military lawyer, a member of the Judge Advocate General’s Corps, opined that the proceedings were conducted in accordance with law and regulation and that the punishment was not disappropriate to the offenses committed.  The brigade commander denied the appeal.

The applicant was relieved for cause and a referred NCO evaluation report (ER) was completed.

The DA Form 2627 (Record of NJP Proceedings) is filed on the applicant’s performance fiche.  The record of investigation, including the sworn statements of the applicant’s three accusers and other associated documents are filed on the restricted fiche.  Except for the heading and the date, the applicant’s statement to the appeal authority is identical to that submitted with this application.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive 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.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

Chapter 3 of the regulation further provides that an NJP may be set aside upon a determination that, under all the circumstances of the case a clear injustice has resulted.  A clear injustice means that an unwaived legal or factual error has clearly and affirmatively injured the substantial rights of the soldier.  New 

evidence unquestionably exculpating the individual is a cited example whereas 
the fact that a soldier's subsequent performance has been exemplary or that the punishment adversely affects career potential is expressly excluded from the definition of clear injustice.

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 punishment under Article 15, UCMJ was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.

2.  There is no basis for setting aside the NJP and this Board will not substitute its determination as to guilt for that of the commander who made the decision at the time.  

3.  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.

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

__AAO___  __RWA _  __KYF__  DENY APPLICATION

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

INDEX

CASE ID	AR2001065357	
SUFFIX		
RECON		
DATE BOARDED	20020404	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	.  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.04	
2.		
3.		
4.		
5.		
6.