MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 JULY 2003                  
	DOCKET NUMBER:   AR2002080531

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret V. Thompson		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:  That he be granted reconsideration by a Special Selection Board for promotion to Chief Warrant Officer Three.

APPLICANT STATES:  That a record of nonjudicial punishment he received under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) in April 1997, was not placed in his performance fiche until July 2000.  His 
29 January 2002, request to move the Article 15  from his performance fiche to his restricted fiche was approved on 4 June 2002, however he feels an injustice occurred because the Article 15, which had served it intended purpose, was in his records when he was nonselected for promotion to Chief Warrant Officer Three by the 2001 and 2002 promotion boards.  He contends that an injustice has been done through the mishandling and delay with regard to his service record, that without notice that the Article 15 was not going to be filed or the actual presence of the Article 15 in his fiche he was unable to take action to have it moved.  Compounding the delay in his requesting it’s removal from his performance fiche was the ineffectiveness of his legal assistance.  

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

On 29 March 1995, the applicant was appointed as a Reserve Warrant Officer One, and promoted to Chief Warrant Officer Two on 29 March 1997.

On 20 May 1997, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for driving while intoxicated.  His punishment was a forfeiture of $500.00 per month for two months.  The imposing general directed that the Article 15 be filed in the applicant’s performance fiche.

On 29 January 2002, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) to transfer his Article 15 from the performance portion of his Official Military Personnel File to a restricted file. 

On 4 June 2002, the DASEB approved the transfer of the Article 15 based upon intent served, and further advised that it’s transfer was not to be considered retroactive, and did not constitute grounds for referral to a Special Selection Board for a previous non-selection.

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 applicant provides no evidence that he attempted to have the Article 15 transferred prior to his non-selection for promotion.  

2.  The applicant’s primary contention is that without the actual presence of the Article 15 in his performance fiche he could not take action to have it transferred, and that he did not receive appropriate legal guidance until he arrived in Korea in March 2001.  The applicant’s DA Form 2627 (Record of Proceeding under Article 15, UCMJ) clearly shows that the imposing commander directed it to be filed in his Performance Fiche.  If the Article 15 was not placed on his performance fiche until July 2000, as he contends he did not request it’s transfer until January 2002, and provides no evidence to support the two year delay or his inability to get sufficient legal advice.  

3.  The April 1997 UCMJ action was administered in accordance with applicable regulations and was not disproportionate to the offense involved.  There is no evidence of any substantive violation of the applicant’s rights.

4.  The Board agrees with the DASEB determination that the transfer of the applicant’s Article 15 on 4 June 2002, is not retroactive, and does not constitute grounds for referral to a Special Selection Board for a previous non-selection. 

5.  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 that requirement.

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

__FNE __  __MVT__  __ENA __  DENY APPLICATION

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

INDEX

CASE ID	AR2002080531	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030715	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.