MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 May 2002
         DOCKET NUMBER: AR2002066531

         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
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. John N. Slone		Member
Mr. Terry L. Placek		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: That his Article 15, dated 18 May 1984, be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: That the Article 15 had been placed in the restricted portion of his file. The applicant states that he heard a couple of sergeants major say that the documents on the Restricted Fiche were reviewed and used as a determining factor in promotions. He states that the Article 15 indicates punishment under these proceedings would not be used against him for promotion and it appears that it has. He also states that these events took place when he was in pay grade E-4, but now he is in the pay grade of E-7.

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

The applicant enlisted in the Regular Army on 18 June 1982 and has continued to serve on active duty through a series of reenlistments. He is currently serving on active duty in the rank of sergeant first class.

On 18 May 1984, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for violating a lawful general regulation by wrongfully being involved in the transferring of 16 cartons of U.S. tax free cigarettes to a German national, a person not authorized to possess said U.S. tax free merchandise. The applicant elected not to demand trial by court-martial, requested a closed hearing in the Article 15 proceedings, and waived consultation with a lawyer.

After consideration of all matters presented in the closed hearing, the imposing commander decided that, beyond a reasonable doubt, that the applicant committed the offenses and imposed the punishment of reduction to E-3 (suspended for 90 days), 20 days extra duty as directed by the company First Sergeant, and forfeiture of $75.00 pay per month for 2 months.

The imposing commander directed that the DA Form 2627 (Record of Proceedings under Article 15) be filed in the applicant's Restricted Fiche of his OMPF. The applicant accepted the Article 15 and elected not to appeal the punishment.

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM). Chapter 3 of the regulation implements and amplifies Article 15 of the Uniform Code of Military Justice, and Chapter XXVI of the MCM. Figure 3-3 of Army Regulation 27-10 shows the DA Form 2627 (Record of Proceedings under Article 15, UCMJ) including Note 6 which states: "The imposing commander will initial the appropriate block. The OMPF performance fiche is routinely used by MOS/specialty career managers and DA selection boards. The OMPF restricted fiche is not given to MOS/specialty career manager or DA selection boards without approval of the Commander, MILPERCEN [currently known as the U.S. Total Army Personnel Command] or selection board proponent."

Army Regulation 27-10, in pertinent part, states the applicable policies for nonjudicial punishment. The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627. The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a soldier’s record.

Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by: the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

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 Board considered the applicant's claim that it appears the Article 15 filed in his restricted microfiche has been used against him.

2. The Board noted, however, Figure 3-3 under Army Regulation 27-10, in effect at the time, states the OMPF restricted fiche is not given to DA selection boards without approval of the Commander, U.S. Total Army Personnel Command or selection board proponent. There is no evidence, and the applicant has provided no evidence, which shows that the Article 15 was used against him for promotion purposes or was otherwise used against him by the promotion selection board.

3. The applicant has provided no evidence that the Article 15 was in error or unjust. Army Regulation 27-10 and Army Regulation 15-185 (Policy and Procedures for Applying to the Army Board for Correction of Military Records) specifically preclude the removal of a valid DA Form 2627 from a soldier’s record, by the Army Board for Correction of Military Records, without compelling evidence. The Board finds no compelling evidence to support removal of the applicant’s Article 15; therefore, this Article 15, UCMJ, dated 14 May 1984, will not be expunged.

4. 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.

5. 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

JL______ TLP_____ JNS_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066531
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020509
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	126.0400
2.
3.
4.
5.
6.