MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 February 2003
         DOCKET NUMBER: AR2002078550

         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. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Eloise C. Prendergast		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 under the Uniform Code of Military Justice (UCMJ) dated 6 March 1998, be permanently removed from the Restricted Fiche of his Official Military Personnel File (OMPF).

APPLICANT STATES: That he knows this punishment was unjust, severe and damaged his chance for promotion. He contends that he never received personal or professional gain from this situation nor did this offense bring discredit upon his unit, the Army and his Nation. The applicant did not submit any documents in support of his application.

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

The applicant enlisted in the Regular Army on 3 February 1984 and has continued to serve on active duty through a series of reenlistments. He is currently assigned to Fort Hood, Texas, in the rank of sergeant first class.

On 18 May 1984, the applicant was punished under Article 15, UCMJ, for bigamy and for wrongfully and unlawfully subscribing under lawful oath a false statement. He elected not to demand trial by court-martial, requested a closed hearing in the Article 15 proceedings, and did not request a person to speak in his behalf.

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 forfeiture of $1100.00 per month for 2 months and suspended forfeiture in excess of $250.00 per month for 2 months (automatically remitted if not vacated before 9 September 1998).

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), 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 by the Army Board for Correction of Military Records (ABCMR).
Figure 3-3 of Army Regulation 27-10 shows the DA Form 2627 (Record of Proceedings under Article 15, UCMJ) including Note 7 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 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 this punishment was unjust and severe. However, contrary to the applicant's contention, the Board noted that the applicant did not request trial by court-martial and did not appeal his punishment.

2. The Board also considered the applicant's contention that the Article 15 damaged his chance for promotion. However, the applicant has not presented evidence that the Article 15 resulted in non-selection for promotion. Furthermore, the Board noted that, in accordance with the governing regulation, the Restricted Fiche will not be reviewed by selection boards without approval of the Commander of the U.S. Total Army Personnel Command.

3. The Board also considered the applicant's contentions that he did not receive personal or professional gain from this situation nor did this offense bring discredit upon his unit, the Army and his Nation. The Board found, however, that the applicant's misconduct reflected poorly on the noncommissioned officer corps and the Army. Certainly, his conduct was not that expected of a senior noncommissioned officer.

4. Notwithstanding the applicant's contentions, there is no evidence, and the applicant has provided no evidence, which shows that the Article 15 was in error or unjust.

5. Based on all the foregoing, the Board finds no compelling evidence to support the applicant's request for removal of his Article 15 from the Restricted Fiche of his OMPF. Therefore, his Article 15 will not be expunged from his records.

6. 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.

7. 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

FNE____ JEA_____ ECP_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078550
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030206
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.