MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 August 2003                  
	DOCKET NUMBER:   AR2002083007

	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 John N. Slone 		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Regan K. Smith		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:  In effect, that an October 2000 nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) be set aside and removed from his record.

APPLICANT STATES:  That the officer imposing the NJP did not apply the "total soldier" concept when he imposed the punishment.  In effect, that members of his company chain of command were newly arrived and prejudiced against him, in part, because he was not Ranger qualified.  He submits documents and statements associated with the NJP hearing and a 4 September 2001 memorandum showing the company commander assumed command on that date.  

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

He was a staff sergeant with approximately 9 years of continuous active duty when, on 24 September 2001, he accepted NJP for maltreating a subordinate by ordering him to low-crawl with his face on the ground and to perform physical training and for not refusing to carry out an unlawful order.

The battalion commander imposed punishment consisting of forfeiture of one half pay per month for 2 months, reduction to pay grade E-5 and extra duty for 45 days.  He directed that the DA Form 2627 be filed in the restricted portion of the applicant's official military personnel file.

The applicant appealed and submitted matters in mitigation including a memorandum from a defense counsel to the effect that the applicant should not have been held accountable for obeying the order to "smoke him".  Defense counsel pointed out that requiring offenders to do physical training was an accepted common practice.

An officer of the Judge Advocate General's Corps, a lawyer, opined that the punishment was imposed in accordance with law and regulation and that it was not disproportionate to the offense(s).  The appeal authority suspended the forfeiture for 180 days and left the other punishments unchanged.

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.  It preserves a member's record of service from 
unnecessary stigma by a record of court-martial conviction; and furthers 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 before courts-martial 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.
 
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(s), it is concluded:

1.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at nonjudicial punishment.  

2.  The NJP 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.  

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

__JNS __  __RWA__  __RKS __  DENY APPLICATION

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

INDEX

CASE ID	AR2002083007	
SUFFIX		
RECON		
DATE BOARDED	20030821	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.