MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           10 April 2003                  
	DOCKET NUMBER:   AR2002078606

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Maria J. Troup		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 the report of a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice be expunged from his military record.

APPLICANT STATES:  He states that he was told that he would receive less punishment if he accepted NJP and did not appeal, but he had no lawyer to advise him.  He wants a career in law enforcement and believes that this NJP will keep him from getting a job with the U.S. Marshall Service.  He submits a law enforcement training course certificate and the report of a criminal records check showing only traffic tickets. 

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

The applicant enlisted and entered active duty on 18 May 1984.  He completed training as a smoke generator operator and was stationed at Fort Polk, Louisiana where he was awarded the Army Achievement Medal for the period 1-30 October 1985 and advanced to pay grade E-4.

On 23 February 1987 he was informed that his commander was considering whether to impose NJP for stealing an AM/FM radio tuner worth $279.00 from the base exchange.  The applicant was afforded an opportunity to consult with counsel, waived his right to demand a trial by court-martial, requested an open hearing, indicated that another person would speak in his behalf and that he would present evidence in extenuations and/or mitigation.  On 24 February 1987 the commander imposed punishment consisting of forfeiture of $329.00 per month for one month and reduction to pay grade E-1.  He directed that the record of NJP proceedings be filed on the performance fiche of the applicant's Official Military Personnel File.  The applicant did not appeal the punishment.

On 19 March 1987 the applicant was separated from active duty due to the completion of his required service and transferred to the Army Reserve with an honorable characterization of service.  He was assigned a re-entry code of RE-1.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment 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.  It preserves a member's record of service from 
unnecessary stigma by a record of court-martial conviction; and furthers military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

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.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at nonjudicial punishment.  

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.  Careful consideration has been given to the applicant's service prior to the contested NJP.  However, the offense in question is too serious, and his prior service not distinguished enough, for equitable relief to be appropriate.  

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

_FNE ___  ___LE___  __MJT __  DENY APPLICATION

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

INDEX

CASE ID	AR2002078606	
SUFFIX		
RECON		
DATE BOARDED	20030410	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.