MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           19 June 2003                  
	DOCKET NUMBER:   AR2002081021

	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. John N. Slone		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. William D. Powers		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 record of a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) be expunged from his records.

APPLICANT STATES:  That he never received the NJP, he was not notified of his rights, there was never any hearing and he did not sign the DA Form 2627 (Record of Proceedings under Article 15, UCMJ).  He contends that the NJP was not conducted properly, that there is a requirement that he be counseled and a record of counseling prepared and attached to the DA Form 2627.  He argues that the DA Form 2627 does not set forth an offense, which makes it difficult to know how to respond.  The applicant implies that the DA Form 2627, itself, is a forgery.  He provides examples of his signature and initials and asks that they be compared to the signatures and initials on the form.

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

He was a member of the Florida Army National Guard serving in pay grade E-4 with the 13th Army Band, on 26 April 1995, when the commanding officer notified him that NJP was being considered for falsifying an official document.  The applicant waived his right to demand trial by court-martial and requested a closed hearing.  He requested that another person speak in his behalf and indicated that matters in defense, mitigation or extenuation were both not presented and were attached.

The commander imposed punishment in the form of reduction to pay grade E-3.  The applicant did not appeal.

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.

Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual Files, and Army Personnel Qualification Records.  Paragraph 2-3 prescribes that the OMPF is to be maintained in a microcopy form.  It consists of three parts: 1) the service fiche  (s-fiche) which contains service data and general information;  2) the p-fiche which contains performance, commendatory, and disciplinary information; and 3) the r-fiche, which contains historical data or documents which, may normally be improper for review by selection boards or career managers.  Letters or memoranda of reprimand filed in accordance with Army Regulation 600-37, are normally filed on the p-fiche.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF, it becomes a permanent part of that file.  That paragraph provides for appeals for transfer/removal of the LOR by this Board or by certain other Departmental agencies.

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.  There is no available evidence to substantiate the applicant's contentions or to show that the DA Form 2627 is anything but an authentic document.  The Board notes that the applicant does not proclaim his innocence in the offense charged or deny knowledge of the incident at issue.  

2.  This Board does not have a handwriting analysis expert on staff, accordingly no conclusion can be drawn from handwriting samples.

3.  There is no evidence to show that the NJP was not 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. 

4.  The regulation that governs the maintenance of personnel records provides that once the custodian accepts a document it is presumed to be administratively correct.  Demonstrating otherwise is the individual
's responsibility.

5.  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.  

6.  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.

7.  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

__JNS___  ___LEM_   __WDP_  DENY APPLICATION

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

INDEX

CASE ID	AR2002081021	
SUFFIX		
RECON		
DATE BOARDED	20030619	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	deny	
REVIEW AUTHORITY		
ISSUES         1.	126.01	
2.		
3.		
4.		
5.		
6.