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ARMY | BCMR | CY1997 | 9711237
Original file (9711237.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, the applicant requests that the nonjudicial punishment under Article 15, UCMJ, be removed from his official military personnel file (OMPF).

APPLICANT STATES : That he was defending himself when the incident occurred. He has an otherwise outstanding record and feels that this injustice hampers his employment opportunities. He has nothing but his word to defend himself. He was never in trouble (while in the service), except for this one incident, for which he feels that he was railroaded. He feels that he was the victim of a political situation. He does not deny the allegations, but there was cause for his actions, which was not considered at the time.

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

The applicant entered the Army in April 1986, completed training, and in September was assigned to an armored cavalry squadron at Fort Bliss, Texas. In February 1988 he was transferred to an infantry unit in Korea. He reenlisted for five years on 18 January 1989, and in April of that year was assigned to an infantry unit in Berlin. In January 1991 he was assigned to Fort Carson, Colorado. On 1 June 1992 he was promoted to Sergeant.

On 16 November 1992 the applicant received nonjudicial punishment under Article 15, UCMJ, for unlawfully striking a solider in the mouth with his hand. He was reduced to specialist, suspended if not vacated before 17 March 1993. He elected not to appeal this punishment. The official imposing the punishment directed that the record of punishment (DA Form 2627) be filed on the applicant’s performance fiche of his OMPF.

The applicant requested a separation from the Army for hardship reasons in early 1993. On 24 April 1993 the separation authority approved his request, stating that he would be released from active duty and transferred to the individual ready reserve.

He was discharged at Fort Carson on 1 June 1993. His separation document (DD Form 214) shows that he was awarded the Army Achievement Medal with 1 st oak leaf cluster, and the Army Good Conduct Medal, among other decorations. He had 7 years, 1 month, and 14 days of service.

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 nonpunitive 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; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further 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 courts-martial rules of evidence and may consider any matter, including unsworn statements the commander reasonably believes 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. It also provided that the officer imposing NJP
determines whether the report of NJP (DA Form 2627) is
to be filed on the individual's restricted or
performance fiche.

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. 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. He chose not to appeal the punishment. The applicant himself implied that he did in fact commit the act for which he received nonjudicial punishment. The applicant has provided no probative evidence nor a convincing argument to show that the nonjudicial punishment was falsely administered, wrongful, or erroneous, despite his claim of injustice, and his contention that he was the victim of a political situation and had cause for his action. Furthermore, the applicant has not provided good reason to have the record of nonjudicial punishment removed from his OMPF.

4. 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

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director

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