APPLICANT REQUESTS:  In effect, removal of a record of nonjudicial punishment (NJP) from the performance portion of his Official Military Personnel File (OMPF) and reconsideration for promotion to pay grade E-7 and E-8.

APPLICANT STATES:  In effect, that a record of NJP remained in his OMPF after the punishment was “wholly set aside by the imposing officer” and as such was reviewed by promotion selections boards resulting in his nonselection for promotion and ultimate retirement in pay grade E-6.  He notes that Army Regulation 600-200 provides for the reconsideration of promotion if “an article 15 punishment that was wholly set aside on or after 1 September 1979 was filed on the performance fiche when reviewed by the [promotion] board.”

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

He served an initial period of active duty between 1973 and 1976 and then reenlisted on 21 March 1978.

In April 1980 the applicant, while serving in pay grade E-5 at Fort Hood, Texas was punished under Article 15, UCMJ for operating a vehicle while drunk.  His punishment included reduction to pay grade E-4, which was suspended for 180 days, and forfeiture of $338.00 for two months.

On 22 May 1980 the officer who imposed the original punishment “set aside” one month of the two month forfeiture.  The suspended reduction and forfeiture of #338.00 for one month remained in effect.

The applicant was subsequently promoted to pay grade E-6 in July 1982.  On 28 February 1995 he retired for length of service after completing 20 years of active Federal service.

Army Regulation 600-200 does state that an individual may be reconsidered for promotion if an Article 15 remained on the 


performance fiche of the OMPF after punishment was “wholly set aside” providing it was set aside on or after 
1 September 1979.

Army Regulation 27-10 (Military Justice) states that setting aside punishment imposed under Article 15, UCMJ is an action whereby the punishment or any part or amount, whether executed or unexecuted is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is “wholly set aside” when the commander who imposed the punishment sets aside all punishment imposed upon an individual under Article 15.

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 evidence confirms that only a portion of the punishment imposed under the Article 15 issued in April 1980 was set aside.

2.  The suspended reduction to pay grade E-4 and one months forfeiture remained in effect.  As such the punishment was not “wholly set” aside and the record of NJP correctly remained on the applicant’s performance fiche.  The provisions of Army Regulation 600-200, which allows for promotion reconsideration, would not apply in this case.

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 the aforementioned 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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director