MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 October 2002
	DOCKET NUMBER:   AR2002079144

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Karen A. Heinz		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:  Reconsideration of his request for placement of his records before a standby advisory board (STAB) for promotion reconsideration to Master Sergeant.

APPLICANT STATES:  That a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) was improperly filed on his performance fiche in his Official Military Personnel File (OMPF).  This improper filing adversely affected his promotion chances resulting in his nonselection for promotion to the rank of Master Sergeant.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records that were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 4 December 2001 (AR2001063031).  The applicant provides new evidence in the form of a statement, dated 2 May 2002, from the appellate authority, a Major General (retired), who acted on the subject nonjudicial punishment (NJP).  The letter states that it was always the intent of the appellate authority to file the NJP on the applicant's restricted fiche and, had he known that he could not change the filing decision made by the commander who imposed punishment, he would have directed that commander to place the NJP on the applicant's restricted fiche from the very beginning.

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.  Although the letter from the appellate authority is new, the argument raised in it is not new to the Board.  The Board already knew of the appellate authority's desire to transfer the NJP from the applicant's performance fiche to his restricted fiche provided the applicant demonstrate 180 days of good behavior.

2.  The appellate authority's intent is irrelevant to this case.  At the time of the subject NJP, the filing decision for NJP's did not rest with the appellate authority; it resided solely with the imposing commander.  In this instance, the imposing commander directed filing on the performance fiche on 17 November 1994.  Following the imposition of punishment and the filing decision, the applicant appealed to the appellate authority.  On 23 November 1994, the appellate authority, in contravention to Army regulations then in effect, attempted to alter the filing decision predicated on the applicant's demonstration of good behavior.

3.  On 23 July 2001, the Department of the Army Suitability Evaluation Board (DASEB), upon request from the applicant, directed that the subject NJP be removed from his performance fiche and placed on his restricted fiche.  The DASEB reasoned that the NJP had served its intended purpose.  This is the same reason given by the DASEB for the transfer of two earlier NJP's from the applicant's performance fiche to his restricted fiche.
4.  The Board finds the applicant's penchant for accumulating NJP's somewhat disturbing.  The applicant was a 30-year old Sergeant First Class (SFC/E-7) with more than 12 years of active service at the time of the offenses that were subject to the NJP.  His pattern of behavior should have been well established by the time of these offenses, and his judgment should have been mature.  Given the applicant's two previous NJP's, one for larceny from a fellow soldier, and one for larceny and assault on a German national, the current offenses highlight an established pattern of misconduct, a lack of integrity, or serious character deficiencies.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__rvo___  __slp___  __eja___  DENY APPLICATION

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

INDEX

CASE ID	AR2002079144	
SUFFIX		
RECON		
DATE BOARDED	20021024	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.1100	
2.		
3.		
4.		
5.		
6.