APPLICANT REQUESTS: That the nonjudicial punishment (NJP) he received be removed from his record.
APPLICANT STATES: He was initially told by the Staff Judge Advocate (SJA) that his only recourse was to accept the NJP. After accepting the NJP, he was informed that had he requested a court-martial the charge would have been thrown out.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army on 23 April 1985 and was honorably discharged in pay grade E-4 after 9 years, 8 months and 28 days of service.
While serving in Germany in June of 1994 he was accused of indecent assault upon another soldiers wife. During the course of the investigation of the assault, he made two statements under oath to criminal investigators concerning his involvement in the assault. In his first statement, given on 29 June 1994, he claimed that the victim made a pass at him and when he rejected her she became angry and ran from him. In the second statement, given on 12 July 1994, he admitted to placing his hands inside the dress of the victim.
On 18 October 1994 the applicant accepted NJP from his battalion commander for making a false official statement, orally communicating indecent language, and two specifications of committing an indecent act. His punishment included reduction to the grade of E-4 and forfeiture of $644.00 pay per month for 2 months.
The record shows that after being advised of his rights in connection with accepting NJP, he did not demand trial by court-martial. Further, he indicated that he did not desire to appeal the punishment he received. There are no documents in the file to confirm or refute his allegation concerning the contradictory information provided to him by the SJA.
The policies and procedures governing the imposition of NJP are set out in title 10, United States Code, section 815 (Article 15, (UCMJ)), and in Army Regulation 27-10, chapter 3. In this case there is no evidence of significant departure from those established policies or procedures.
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, NJP is different from a trial by court-martial. An NJP hearing is a more informal proceeding where the rules of evidence need not be strictly applied. Before he elected to accept NJP 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 NJP.
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. 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 the aforementioned requirement
4. In view of the foregoing, there appears to be no basis for granting the applicants 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
DENY APPLICATION
Karl F. Schneider
Acting Director
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