MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 March 2002
         DOCKET NUMBER: AR2001061135

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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)

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APPLICANT REQUESTS: In effect, that the 4 August 2000 proceeding of the Article 15, Uniform Code of Military Justice, (UCMJ) nonjudicial punishment (NJP) be invalidated and expunged from his records and that he reimbursed the monies forfeited. He also requests reinstatement as a drill sergeant.

APPLICANT STATES: In effect, that the alleged victim lied, that he never requested any money from her, that the fact that she had an alcohol problem and was subsequently discharged for this and a personality disorder supports that she lied. He further states that the testimony by witnesses who were present supports his contentions.

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

The applicant entered active duty 14 April 1984 and has served continuously through the present time. He completed Drill Sergeant School on 2 October 1998 and was assigned to the Signal Training Center, Fort Gordon, Georgia, in that capacity. On 1 January 1999, he was promoted to sergeant first class (SFC).

On 12 February 1999, a letter of concern was entered into the applicant’s record. The areas of concern were that he had been using vulgar and obscene language with soldiers in formation, sexually explicit gestures that were offensive in nature, and other allegations of improper conduct that had not been substantiated at that point.

The applicant’s company commander notified him, on 9 March 2000, that he was recommending that the applicant not be granted a 3^rd year extension on his Drill Sergeant status due to his questionable behavior.

On 4 August 2000, the applicant elected to accept NJP under Article 15, UCMJ. for two counts of violation of Article 134 and two counts of Article 93 of the Uniform Code of Military Justice (UCMJ). The applicant was found not guilty on three of the counts but guilty of wrongfully soliciting and receiving $100 from a private to reduce her Company Grade Article 15 to a Summarized Article 15. The punishment imposed was forfeiture of $1248.00 per month for two months.

The applicant immediately appealed this decision and the punishment to the Commander, 15^th Signal Brigade, Fort Gordon, Georgia. The NJP action was upheld and the punishment was deemed appropriate on 11 August 2000.

On 14 August 2000, a recommendation that the applicant be removed from the Drill Sergeant Program was initiated. Justification for this action included the guilty finding at the Article 15 proceedings and the reported use of vulgar, obscene language and sexually explicit gestures with soldiers in formation.

In the development of this case, an advisory opinion was obtained from the Deputy Chief of Staff for Personnel, Suitability Evaluation Board (DASEB). The DASEB reviewed the evidence and undertook additional development of this matter. Upon completion of their actions the DASEB opined that the Article 15 and Drill Sergeant removal packet were fair and just and that it would not be in the best interest of the Army to remove them. They further opined that the applicant had not proven his case and recommended that the application be denied.

A copy of this opinion was forwarded to the applicant for his review and possible rebuttal on 24 January 2002. The applicant did not respond within the allotted time.

Army Regulation 27-10 provides policy for the administration of military justice. Chapter 3 provides that NJP 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; 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 rules of evidence before courts-martial and may consider any matter, including unsworn 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 27-10, further provides that the officer imposing NJP is to determine whether the report of NJP (DA Form 2627) is to be filed on the individual's restricted or performance fiche. Paragraph 3-6 states, in pertinent part, “the interests of the Army are compelling when the record of nonjudicial punishment reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the 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. The applicant has submitted no evidence that was not considered by his command or that shows that his command acted improperly in this matter.



2. As its name indicates, NJP 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 trial by court-martial where he would receive the protection of the rules of evidence. Instead he chose to have the matter settled with NJP.

3. The NJP was imposed in compliance with applicable laws, regulations and policies and was neither unjust nor disproportionate to the offense. The punishment imposed was within legal limits; the record of proceedings (DA Form 2627) is properly on file and there is no evidence of any violation of any of the applicant's rights.

4. 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 is too undistinguished, for equitable relief to be appropriate.

5. 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.

6. 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__ __LDS___ ___JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061135
SUFFIX
RECON
DATE BOARDED	20020321
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	126.04
2.	128.00
3.	100.00
4.
5.
6.