MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 June 2002
         DOCKET NUMBER: AR2002070499

         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:

Mr. Raymond V. O'Connor		Chairperson
Mr. Roger W. Able		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: That the record of proceedings imposed under Article 15, Uniform Code of Military Justice (UCMJ), on 12 May 1988, be removed from the restricted section of his Official Military Personnel File (OMPF).

APPLICANT STATES: That he has been punished severely for what should have been handled by counseling. He contends that it is not fair to continue to be "haunted" each time he accesses the restricted section of his OMPF. He states that he has learned from this incident and there has been no repeated instances since 1988. He contends that it is unjust to continue to allow this incident to affect his career. He further contends that the U.S. Total Army Personnel Command (PERSCOM) has access to this information and he strongly suspects that he was not selected for resident Command and General Staff Officer Course (CGSC) as a result of this incident. The applicant did not submit any documents in support of his application.

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

The applicant was appointed as a Reserve commissioned officer on 18 January 1986 in the Medical Service Corps and was ordered to active duty on 23 February 1986. Records show he was appointed as a major in the Regular Army on 1 April 1997.

The applicant is currently assigned to the U.S. Army Medical Department Activity at Fort Leavenworth, Kansas, in the rank of major.

On 12 May 1988, the applicant was punished under Article 15, UCMJ, for wrongfully having sexual intercourse with a married woman, not his wife, at some time between 1 January 1988 and 30 April 1988. The applicant elected not to demand trial by court-martial and in the Article 15 proceedings, he requested a closed hearing, and declined consultation with counsel and elected to present matters in his own defense.

After consideration of all matters presented in the hearing, the imposing commander decided that, beyond a reasonable doubt, that the applicant committed the offense and imposed the punishment of forfeiture of $500.00 pay per month for 2 months and restriction for 45 days as defined in the memorandum attached to the Article 15 proceedings. The imposing commander directed that the 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 nonjudicial punishment.

Records show that the record of proceedings under Article 15, dated 12 May 1988 and all related documents were properly filed on the restricted fiche of the applicant's OMPF.

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 contention that he has been severely punished for what should have been handled by counseling. However, prior to accepting the nonjudicial punishment, the applicant was offered the right to consult with counsel who was obliged to advise him of his rights, but he declined to do so.

2. The nonjudicial punishment was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was not disproportionate to the offense, and there is no evidence of any violation of the applicant's rights.

3. The Board also considered the applicant's contention that it is unjust to continue to allow this incident to affect his career and that he suspects that he was not selected for residency CGSC because of the Article 15 proceedings. However, there is no evidence, and the applicant has provided no evidence, which shows that the Article 15 has affected his career was or was otherwise used against him for selection to residency CGSC.

4. 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, there is no basis for removing this Article 15, UCMJ, dated 12 May 1988, from the restricted section of the applicant's OMPF.

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

RVO_____ JTM_____ RWA_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070499
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020620
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.	126.0600
2.
3.
4.
5.
6.