| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Ms. Joann H. Langston | Chairperson | |
| Ms. Margaret K. Patterson | Member | |
| Mr. Eric N. Anderson | Member |
APPLICANT REQUESTS: That his records be considered by a Standby Advisory Board (STAB) for promotion reconsideration to Master Sergeant.
APPLICANT STATES: That the Department of the Army Suitability Evaluation Board (DASEB) recently approved the transfer of an Article 15 from his performance fiche to the restricted fiche based upon intent served. However, they made no mention of the appellate authority’s direction at the time to file the Article 15 in the restricted fiche. The appellate authority specifically and clearly directed the Article 15 be filed in his restricted fiche. Supporting evidence is as listed on the DD Form 149.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army on 27 July 1982 and has had continuous active service. He was promoted to Sergeant First Class, E-7 on 1 January 1994.
On 15 November 1994, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty, to wit, work call formation, on 13 occasions. The field-grade commander imposed a punishment of a forfeiture of $800.00 and directed the Article 15 be filed in the applicant’s performance fiche. The applicant appealed the punishment. On 23 November 1994, the appellate authority, a major general, granted the appeal “as follows: Adjudge forfeiture of $400 effective immediately. Direct filing in the Restricted fiche of the OMPF. Direct filing in the Performance fiche of the OMPF suspended for 180 days subject to his continued good conduct. If his conduct is exemplary, the punishment will be remitted.”
The applicant received an annual noncommissioned officer evaluation report (NCOER) for the period ending March 1995. He received “success” ratings in all areas of NCO responsibilities and the only comment on the above incident was made by the senior rater, “Overcame adversity in doing a credible job as this unit’s training NCO.” He received a Meritorious Service Medal for the period 1 May 1994 through 14 November 1999.
In April 2001, the applicant appealed to the DASEB for transfer of his Article 15 dated 15 November 1994 to the restricted fiche. On 23 July 2001, the DASEB voted to approve the transfer of the Article 15 to his restricted fiche based upon intent served. It was not to be considered retroactive and therefore did not constitute grounds for referral to a STAB.
Army Regulation 27-10, effective 8 September 1994, paragraph 3-35 stated that “Any superior authority may exercise the same powers, except those of filing determinations, as may be exercised by the imposing commander.” The current version of the regulation, effective 20 September 1999, contains an identical limitation upon the superior authority. Paragraph 3-37b(1)(a) reiterates that the decision to file the original Article 15 on the performance fiche or the restricted fiche will be determined by the imposing commander at the time the punishment is imposed. The filing decision of the imposing commander is final.
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. The applicant’s Article 15 dated 15 November 1994 was properly filed on his performance fiche. The error was not made in the filing of the Article 15; it was made by the appellate authority, who did not have the authority to legally suspend or change the filing determination of the commander who imposed the nonjudicial punishment. The action by the appellate authority that purported to suspend or change the filing determination would have been without legal effect.
2. The Article 15 was therefore properly filed on the applicant’s performance fiche. The Board concludes that the DASEB’s determination that the Article 15 be transferred to his restricted fiche based upon intent was appropriate and agrees with its finding that there are no grounds for a STAB.
3. 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
__jhl___ __mkp___ __ena___ DENY APPLICATION
| CASE ID | AR2001063031 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20011204 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 126.01 |
| 2. | 131.00 |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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