MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 December 2001                   
	DOCKET NUMBER:   AR2001063031

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Eric N. Anderson		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 his records be considered by a Standby Advisory Board (STAB) for promotion reconsideration to Master Sergeant.

APPLICANT STATES:  That the Department of the Army Suitability Evaluation Board (DASEB) recently approved the transfer of an Article 15 from his performance fiche to the restricted fiche based upon intent served.  However, they made no mention of the appellate authority’s direction at the time to file the Article 15 in the restricted fiche.  The appellate authority specifically and clearly directed the Article 15 be filed in his restricted fiche.  Supporting evidence is as listed on the DD Form 149.

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

He enlisted in the Regular Army on 27 July 1982 and has had continuous active service.  He was promoted to Sergeant First Class, E-7 on 1 January 1994.  

On 15 November 1994, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty, to wit, work call formation, on 13 occasions.  The field-grade commander imposed a punishment of a forfeiture of $800.00 and directed the Article 15 be filed in the applicant’s performance fiche.  The applicant appealed the punishment.  On 23 November 1994, the appellate authority, a major general, granted the appeal “as follows:  Adjudge forfeiture of $400 effective immediately. Direct filing in the Restricted fiche of the OMPF.  Direct filing in the Performance fiche of the OMPF suspended for 180 days subject to his continued good conduct.  If his conduct is exemplary, the punishment will be remitted.”

The applicant received an annual noncommissioned officer evaluation report (NCOER) for the period ending March 1995.  He received “success” ratings in all areas of NCO responsibilities and the only comment on the above incident was made by the senior rater, “Overcame adversity in doing a credible job as this unit’s training NCO.”  He received a Meritorious Service Medal for the period       1 May 1994 through 14 November 1999.

In April 2001, the applicant appealed to the DASEB for transfer of his Article 15 dated 15 November 1994 to the restricted fiche.  On 23 July 2001, the DASEB voted to approve the transfer of the Article 15 to his restricted fiche based upon intent served.  It was not to be considered retroactive and therefore did not constitute grounds for referral to a STAB.

Army Regulation 27-10, effective 8 September 1994, paragraph 3-35 stated that “Any superior authority may exercise the same powers, except those of filing determinations, as may be exercised by the imposing commander.”  The current version of the regulation, effective 20 September 1999, contains an identical limitation upon the superior authority.  Paragraph 3-37b(1)(a) reiterates that the decision to file the original Article 15 on the performance fiche or the restricted fiche will be determined by the imposing commander at the time the punishment is imposed.  The filing decision of the imposing commander is final.

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’s Article 15 dated 15 November 1994 was properly filed on his performance fiche.  The error was not made in the filing of the Article 15; it was made by the appellate authority, who did not have the authority to legally suspend or change the filing determination of the commander who imposed the nonjudicial punishment.  The action by the appellate authority that purported to suspend or change the filing determination would have been without legal effect.

2.  The Article 15 was therefore properly filed on the applicant’s performance fiche.  The Board concludes that the DASEB’s determination that the Article 15 be transferred to his restricted fiche based upon intent was appropriate and agrees with its finding that there are no grounds for a STAB.

3.  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

__jhl___  __mkp___  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063031	
SUFFIX		
RECON		
DATE BOARDED	20011204	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	126.01	
2.	131.00	
3.		
4.		
5.		
6.