APPLICANT REQUESTS: Removal of a record of proceedings of nonjudicial punishment (NJP) dated 17 September 1992 from his Official Military Personnel File (OMPF) and promotion reconsideration to the pay grade of E-7 with all back pay and allowances if he is selected.
APPLICANT STATES: In effect, that he was barred from reenlistment under the Qualitative Management Program (QMP) based on the aforementioned record of proceedings of NJP and that he successfully appealed the bar to reenlistment. He further states that when the bar to reenlistment was removed the Department indicated that all references to the bar to reenlistment would be removed from his records. However, the record of proceedings that served as the basis for his bar to reenlistment still remains in his records. He goes on to state that while he was barred from reenlistment, he was not considered for promotion to the pay grade of E-7. Inasmuch as he successfully appealed the bar to reenlistment he should be reconsidered for promotion by the boards that he missed as a result of the QMP action.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted on 4 July 1978 for a period of 3 years. He has remained on active duty through continuous reenlistments and was promoted to the pay grade of E-6 on 1 March 1984.
On 5 April 1993 the applicant was notified that the calendar year 1993 Sergeant First Class Selection Board, after a comprehensive review of his OMPF, had determined that he should be barred from reenlistment under the QMP based on the presence of a record of proceedings of NJP dated 17 September 1992 in his OMPF. On 29 April 1993 the applicant submitted an appeal of the bar to reenlistment to the Department of the Army Standby Advisory Board (STAB).
The STAB approved his appeal on 10 September 1993 and directed that all references to the Department of the Army imposed bar to reenlistment be removed from his records. The STAB also informed the applicant that the removal of the bar to reenlistment did not preclude future imposition of local or Department of the Army bars to reenlistment should his records so warrant.
The record of proceedings of NJP that served as the basis for the QMP action was imposed against the applicant on 17 September 1992, while he was serving in the pay grade of E-6 in Panama. The NJP was imposed against the applicant for driving under the influence of alcohol. His punishment consisted of a forfeiture of pay (suspended) and 7 days extra duty. The imposing commander directed that the record of proceedings of NJP (DA Form 2627) be filed on the performance fiche of his OMPF. The applicant did not appeal his punishment.
A review of the applicants OMPF reveals that the applicant received NJP previously on 17 June 1983 while serving in Panama in the pay grade of E-5. His punishment consisted of a suspended reduction to the pay grade of E-4. The imposing commander directed that the NJP be filed on the restricted fiche of the applicants OMPF.
Army Regulation 27-10 serves as the authority for the filing of DA Forms 2627 in the OMPF. It states, in pertinent part, that only one record of NJP (DA Form 2627) may be filed on the restricted fiche for persons serving in the pay grade of E-5 or higher at the time the NJP was imposed.
Army Regulation 600-200 serves as the authority for selection and promotion to pay grades E-7 through E-9. It states, in pertinent part, that personnel who are barred to reenlistment prior to the convening date of a selection board are not eligible for consideration by that board.
Paragraph 7-44 of that regulation also states, in pertinent part, that a STAB will only consider records of soldiers in the primary zone of consideration that were not properly constituted due to a major material error, when reviewed by a regular board. An error is considered material when in the judgment of a mature individual familiar with selection board proceedings, there is a reasonable chance that had the error not existed, the soldier may have been selected.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The bar to reenlistment was properly imposed in accordance with applicable regulations. Although the applicant successfully appealed the bar to reenlistment, the bar to reenlistment was not based on material error and the documents that served as the basis for the bar were not altered, corrected, or removed from the applicants records. Accordingly, the applicant was not eligible for promotion consideration while the bar to reenlistment remained in effect. Likewise, he is not eligible for promotion reconsideration by a STAB for the period the bar to reenlistment was in effect.
2. The applicants contention that the Department directed that the NJP that served as the basis for his bar to reenlistment be removed from his records is without merit. The Department directed that all references to the bar to reenlistment be removed from his records. The NJP makes no such reference and is properly filed on the performance fiche of his OMPF.
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 is 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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