MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          17 April 2003
	DOCKET NUMBER:  AR2002077022    

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Harry B. Oberg		Member	
	Mr. Ronald J. Weaver		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:  Reconsideration of his earlier request to expunge unfavorable information (DA Form 2627, Record of Proceedings Under Article 15, UCMJ) from his Official Military Personnel File (OMPF) or, in the alternative, transfer it to his Restricted Fiche (R-Fiche).  He also requests reconsideration for promotion to captain with a date of rank (DOR) of 2 January 2001. 

APPLICANT STATES:  In effect, that his misconduct was an isolated incident of clouded judgment that will not occur again.  He believes that the nonjudicial punishment has served its intended purpose and that it would be in the best interest of the Army to allow him to continue to serve.  He states he is providing supporting documentation of the circumstances surrounding his misconduct and his last 2 years of military service.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2001056836) on 12 June 2001.

The applicant submits sworn statements, support memorandums and letters from his current chain of command, a letter declining to provide him a statement from the Lieutenant General that imposed the nonjudicial punishment, the Department of Army Suitability Evaluation Board (DASEB) decision summary, and his last two Officer Evaluation Reports (OER).  The applicant’s submissions are new evidence that require Board consideration.

On 28 March 2002, the DASEB denied the applicant’s request to transfer the DA Form 2627 to his R-fiche.  The DASEB concluded that there was not sufficient evidence to prove that the nonjudicial punishment had served its intended purpose, or that it would be in the best interest of the Army to transfer the document to the R-fiche.

Army Regulation 600-37 serves as the authority for filing unfavorable information in the OMPF.  Paragraph 7-2b allows derogatory documents to be transferred to the R-fiche on the basis of proof that the filing in the performance fiche has served its intended purpose and that transfer would be in the best interest of the Army.  

Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, 2000, hereafter referred to as the MCM and the Rules for Courts-Martial (R.C.M.) contained in the MCM.  Chapter 3 sets forth the policies and procedures governing the imposition of nonjudicial punishment.

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.  While the applicant has once again detailed his contentions, he has not provided sufficient evidence to show that the nonjudicial punishment was improper or that it has served its intended purpose.

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.  The Board notes that the applicant voluntarily requested to have his name removed from the promotion list and has provided no basis why it should be reinstated.  The Board also notes that since he withdrew his name from the captain promotion list, he has been passed over for promotion by a subsequent board.

4.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

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

__wtm___  __hbo___  __rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2002077022	
SUFFIX		
RECON		
DATE BOARDED	20030417	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.0400	
2.	126.0500	
3.	131.1100	
4.		
5.		
6.