ABCMR Memorandum of                                                             AR2002076040
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 September 2002
	DOCKET NUMBER:   AR2002076040

	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. William Blakely | | Analyst

  The following members, a quorum, were present:

| Ms. Celia L. Adolphi | | Chairperson
| Mr. Melvin H. Meyer | | Member
| Mr. John T. Meixell | | 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 the record of non-judicial punishment (NJP), DA Form 2627, dated 8 April 1998, be moved from the performance portion (P-Fiche) to the restricted portion (R-Fiche) of his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that the NJP in question was the result of his having an altercation with a female soldier that involved a knife.  The female soldier was upset because he had not asked her to marry him and he was scheduled to transfer to Fort Hood, Texas.  He claims that while they were arguing in the female soldier’s quarters, she picked up a knife and came toward him.  He took the knife away and went outside and released the knife in the yard. The Military Police came to the scene and cited him for assault in spite of the fact that there were no witnesses.  He feels that he was unjustly charged with the offense.  However, he accepted the NJP and continued to be a professional soldier.  He also claims that subsequent to accepting the NJP, he has distinguished himself in an exemplary manner through his job performance and he has excelled in positions of increased responsibility.  He acknowledges that he did not handle the incident in a professional manner and has received counseling to overcome this shortcoming.  Furthermore, he states that the NJP has served its purpose and it would be in the best interest of the Army to transfer it to the R-Fiche portion of his OMPF based on his overall proficiency and leadership subsequent to his misconduct.  In support of his application, he submits the following documents:  NJP Record of Proceedings (DA Form 2627), dated 8 April 1998; three Noncommissioned Officer Evaluation Reports (NCOERs); Certificate of Achievement; Meritorious Service Medal and Army Commendation Medal certificates; Certificate of Appreciation, and Recommendation for Award (DA Form 638).

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

He is currently serving on active duty at Fort Hood, Texas, in the rank and pay grade of staff sergeant/E-6 (SSG/E-6), and performing duties in military occupational specialty (MOS) 63H (Track Vehicle Repairer).

On 17 April 1998, the applicant accepted NJP for assaulting a female soldier by throwing a knife at her, and choking her around the neck with his hand.  The applicant elected to have his case considered by his unit commander in a closed hearing.  He also presented matters in defense, mitigation, and/or extenuation in person at the closed hearing.  The punishment imposed by his unit commander consisted of a reduction to the rank and pay grade of sergeant/E-5 (SGT/E-5), a forfeiture of $874.00 pay per month for 2 months (suspended), and 45 days of extra duty. 

At the conclusion of the closed hearing, the unit commander elected to direct the filing of the original DA Form 2627 in the P-Fiche of the applicant’s OMPF, and he advised the applicant that he had the right to appeal within 5 calendar days.  The applicant elected to appeal the punishment by submitting additional matters. 

On 28 April 1998, the command Judge Advocate General (JAG) legal representative considered the appeal and found that the proceedings were conducted in accordance with law and regulation and that the punishment imposed were not unjust nor disproportionate to the offense committed.  

On 30 April 1998, after considering all matters presented in the appeal, the appropriate authority elected to remit the 45 days extra duty portion of the punishment imposed.  

On 12 September 2001, the applicant submitted an appeal to the Department of the Army Suitability Evaluation Board (DASEB), requesting that the DA Form 2627 in question be transferred to the R-Fiche of his OMPF.  After considering the evidence submitted by the applicant, the DASEB rendered the following comments, conclusions, and findings:  the incident was three years old; the applicant did not refute the fact that he committed the offense; the applicant provided no evidence of rehabilitation or to justify that the NJP had served its purpose; the DASEB was not convinced that the NJP had served its purpose; and the absence of evidence of rehabilitative efforts or letters of support from the applicant’s chain of command stating that he is trustworthy was noticeably missing from his appeal.  

On 5 December 2001, the applicant was notified by the President of the DASEB that his appeal was denied.  The applicant was advised that a request for reconsideration was authorized upon the presentation of new substantive evidence.  He was also advised that he could request a copy of the DASEB case summary and if after reviewing it, he was unable to provide the DASEB with any new evidence, he could apply to this Board.   

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-37b(2) states, in pertinent part, that for soldiers, in the ranks of sergeant (SGT) and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 on the performance fiche or the restricted fiche in the OMPF will be determined by the imposing commander at the time 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 Board notes the applicant’s contention that the record of NJP in question should be transferred to the R-Fiche portion of his OMPF because the NJP has served its purpose, and based on his demonstrated proficiency and leadership subsequent to his misconduct.  However, it finds insufficient evidence to support these claims.  

2.  The evidence of record confirms the NJP in question was imposed, the applicant’s appeal of the punishment considered, and the filing determination was made by the imposing commander in accordance with the applicable laws and regulations.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the NJP process.  

3.  The Board concurs with the DASEB determination that the applicant has failed to provide sufficient evidence to support a transfer of the NJP in question to the R-Fiche portion of his OMPF.  As noted by the DASEB, the Board also notes the absence of any supporting letters from members of the applicant’s current chain of command that support his request or that attest to his rehabilitation.  Thus, lacking independent evidence to show that the purpose of the NJP has been served, the Board concludes that the requested relief is not warranted in this case. 

4.  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.

5.  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

__CLA__  ___MHM___  __JTM__  DENY APPLICATION

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

INDEX

CASE ID | AR2002076040
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 2002/09/05
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. | 126.0400
2. |
3. |
4. |
5. |
6. |