| Mr. Carl W. S. Chun | Director | |
| Mr. Jessie B. Strickland | Analyst |
| Mr. Arthur A. Omartian | Chairperson | ||
| Mr. Thomas B. Redfern | Member | ||
| Mr. Thomas E. O’Shaughnessy, Jr. | Member |
APPLICANT REQUESTS: In effect, that a Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) (DA Form 2627), dated 2 May 1977, be removed from his Official Military Personnel File (OMPF).
APPLICANT STATES: In effect, that on 9 April 1977, just before his release from active duty (REFRAD) date of 12 May 1977, he encountered some soldiers fighting in a dimly lit parking lot and attempted to break it up. As a result, he got caught up in the fight and an individual who he did not know or recognize came by and attempted to verbally stop the fight; however, it did not work. He later learned that the individual was a newly assigned second lieutenant (2LT). He continues by stating that a staff sergeant (SSG) also came by and attempted to stop the fight and while he could have chosen a better response to the SSG than he did, he was now being attacked by the other soldiers he was trying to separate. He continues by stating that he had a valid defense for his actions at the time but was informed that he would be held past his REFRAD if he elected trial by court-martial. Consequently, he elected to accept the nonjudicial punishment (NJP), not realizing that it may have an effect on his future ability to obtain a security clearance. He goes on to state that he has worked for a civilian company (Defense Contractor) for many years and has the potential for promotion; however, the presence of the NJP may hinder his ability to obtain a security clearance.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in Springfield, Massachusetts, with a moral waiver for disorderly conduct and assault and battery on a police officer on 22 May 1975, for a period of 2 years. He completed his training and was transferred to Germany for duty as a light weapons infantryman.
On 2 May 1977, NJP was imposed against the applicant for willfully disobeying a lawful order from a superior commissioned officer (2LT) "to go to the reenlistment room and sit down", for using disrespectful language towards a superior noncommissioned officer (SSG), and wrongfully participating in a breach of peace by engaging in a fistfight with three other soldiers. The applicant elected not to demand trial by court-martial and presented matters in his defense in an open hearing (in person) before the imposing commander. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty. The applicant elected not to appeal his punishment.
On 12 May 1977, he was honorably REFRAD at Fort Dix, New Jersey, as an early overseas returnee and was transferred to a United States Army Reserve (USAR) unit at Hanscom Air Force Base, Massachusetts. He had served 1 year, 11 months and 21 days of total active service. He was honorably discharged from the USAR on 2 March 1981.
Army Regulation 27-10, in effect at the time, provided filing instructions for filing the DA Form 2627 in the OMPF. It provides, in pertinent part, that the DA Form 2627 will be filed on the performance fiche of the OMPF unless the punishment was for minor offenses. The regulation specifies that extra duty and restriction are those punishments which meet the criteria for punishment for minor offenses. Suspended reductions and forfeitures do not qualify as such.
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. 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.
2. It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so. The record of NJP is properly filed in his OMPF and the evidence of record clearly shows that he did not demand trial by court-martial, whereas he could have asserted his innocence, presented evidence and called witnesses in his own behalf, before a jury of his peers. He was afforded an opportunity to present matters in his own defense in an open hearing before the imposing commander, who apparently did not believe his version of the events. Additionally, the applicant did not submit an appeal of his punishment to the next higher authority.
3. The Board has noted the applicant's contentions that the presence of the NJP in his OMPF may affect his ability to obtain a security clearance; however, that is not a basis to remove a duly imposed and properly filed record of NJP.
4. While the Board understands the applicant’s concerns, the Army has an interest in maintaining such documents, and the applicant has not shown sufficient reasons why the NJP should not remain a matter of record, even after considering his entire record.
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
__teo ___ __tbr____ ___ao___ DENY APPLICATION
| CASE ID | AR2002079799 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2003/04/01 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 328 | 134.0000/REM NJP |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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