ABCMR Memorandum of                                                             AR2002076558
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           8 October 2002                  
	DOCKET NUMBER:   AR2002076558

	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. Edmund P. Mercanti | | Analyst

  The following members, a quorum, were present:

| Mr. Melvin H. Meyer | | Chairperson
| Ms. Jennifer L. Prater | | Member
| Mr. James E. Anderholm | | 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 DA Form 2627, Record of Proceedings Under Article 15, UCMJ, be removed from the restricted portion of his Official Military Personnel File (OMPF).

APPLICANT STATES:  He made a foolish mistake when he was a young soldier, and accepts full responsibility for his actions.  He has been successfully rehabilitated and has gone on to be a very productive and outstanding soldier.  He believes that it is essential that soldiers who falter, but have the potential to serve honorably and well, be given every opportunity to succeed.

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

He enlisted in the Regular Army on 12 October 1982.

On 1 August 1985 the applicant, an enlisted soldier in pay grade E-4, accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for wrongfully using marijuana.  His punishment consisted of a reduction from pay grade E-4 to E-2 (suspended), forfeiture of $347.00 a month for two months, and 45 days of extra duty.  The commander imposing the NJP directed that the proceedings be filed in the restricted portion of the applicant’s OMPF.

The applicant served in the military occupational specialties of personnel senior sergeant and administrative specialist, and was promoted to pay grade E-8.  He has successfully completed a host of service schools, and has been awarded numerous awards and decorations, including the Bronze Star Medal, two Meritorious Service Medals, and three Army Commendation Medals.  At the time the applicant submitted his request he was serving on active duty as a First Sergeant.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that NJP 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; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  It also provided that the officer imposing NJP determines whether the report of NJP (DA Form 2627) is to be filed on the individual's restricted or performance fiche.

This regulation provides that an NJP may be set aside upon a determination that, under all the circumstances of the case a clear injustice has resulted.  A clear injustice means that an un-waived legal or factual error has clearly and affirmatively injured the substantial rights of the soldier.  New evidence unquestionably exculpating the individual is a cited example whereas the fact that a soldier's subsequent performance has been exemplary or that the punishment adversely effects the career potential is expressly excluded from the definition of clear injustice.

This regulation provides that a NJP that has been wholly set aside is to be filed on the restricted fiche of the individual's OMPF.  The regulation also requires that when a soldier requests a record of NJP be transferred to the restricted fiche the request is to be accompanied by substantive evidence that the intended purpose has been served and the transfer of the record is in the best interest of the Army.

Paragraph 3-43 of this regulation, Transfer or removal of records of nonjudicial punishment, limits the authority of the Department of Army Suitability Evaluation Board (DASEB) to the transfer of NJP's from the performance portion of OMPF's to the restricted portion of OMPF's.  

Army Regulation 640-10, which establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF, states, in pertinent part, that the restricted fiche is the OMPF section for historical data that may normally be improper for viewing by selection boards or career managers.  The restricted fiche ensures that an unbroken, historical record of a member's service, conduct, duty performance, evaluation periods, and corrections to other parts of the OMPF is maintained.  It is intended to protect the interest of the member and the Army.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  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.  The applicant does not contest these facts.

2.  The record of NJP is properly filed in the restricted portion of the applicant’s OMPF and as such no error or injustice exists.

3.  The regulation governing the filing of NJP’s is clear that for historical purposes, the Army has a vested interest in maintaining the accuracy of its records.  The applicant accepted NJP for wrongfully using marijuana.  To remove that NJP would disrupt the historical accuracy of the applicant’s military records.

4.  However, the NJP is filed in the restricted portion of the applicant’s OMPF.  As the name implies, access to the restricted portion of a soldiers OMPF is strictly limited.  As such, it is unlikely that the applicant’s NJP will adversely affect him.  His promotion to pay grade E-8, his selection for numerous service schools, and his selection to his current position of First Sergeant all reinforce this assumption.
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

___mhm_  ___jea___  ___jlp___  DENY APPLICATION

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

INDEX

CASE ID | AR2002076558
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 20021008
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. | 126.04
2. |
3. |
4. |
5. |
6. |