| Mr. Carl W. S. Chun | Director | |
| Mr. W. W. Osborn, Jr. | Analyst |
| Mr. Melvin H. Meyer | Chairperson | |
| Mr. William D. Powers | Member | |
| Mr. Frank C. Jones II | Member |
APPLICANT REQUESTS: That the record of a 27 January 1987 nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) be expunged from the restricted portion (R fiche) of his Official Military Personnel File (OMPF).
APPLICANT STATES: In effect, that this document on his R fiche hinders his professional growth, development and promotion.
EVIDENCE OF RECORD: The applicant's military records show:
He is currently a sergeant first class (SFC) with approximately 20 years of continuous active duty service. He was a sergeant (E-5) with approximately 3 years of active duty service when his battalion commander imposed NJP for damaging a helicopter through neglect. The punishment consisted of reduction to pay grade E-4 , suspended. The battalion commander directed that the record of NJP be filed on the applicant's performance fiche. The applicant did not appeal. This is the only offense of record.
On 18 December 2002 the Department of the Army Suitability Evaluation Board approved the applicant's request to transfer the record of the NJP to the restricted fiche based on the determination that the NJP had served the intended purpose.
The applicant was promoted to SFC with a date of rank of 1 March 1998. Since then, his Noncommissioned Officer Evaluation Reports show that his raters have almost exclusively rated him as Excellent/Exceeds standards, except for Physical Fitness and Military Bearing where he has consistently been rated as Successful/Meets standards. His raters have always ranked his overall performance and potential as among the best and his senior raters have exclusively marked him in the top blocks.
His awards include the Meritorious Service Medal, numerous awards of the Army Commendation and Army Achievement Medals, six awards of the Good Conduct Medal, and the Senior Parachutist Badge. He has completed numerous military training courses conducted by the Air Force and the Marine Corps as well as the Army and he has earned several college credits.
Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice. Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures. It preserves a member's record of service from unnecessary stigma by a record of court-martial conviction; and furthers military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial. The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case. Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.
Army Regulation 27-10 also provides that a NJP that has been wholly set aside is to be filed on the restricted fiche of the individual's OMPF. The regulation also requires that when a soldier requests a record of NJP be transferred to the restricted fiche the request is to be accompanied by substantive evidence that the intended purpose has been served and the transfer of the record is in the best interest of the Army.
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. As its name indicates, nonjudicial punishment is different from a trial by court-martial. A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied. Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence. Instead he chose to have the matter settled at nonjudicial punishment.
2. The NJP was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.
3. The Army has an obligation to maintain a complete and accurate record of an individual's service. The placement of a record of NJP on the restricted fiche enables the Army to maintain that historical record without unduly jeopardizing the individual's career.
4. Careful consideration has been given to the applicant's subsequent service following NJP. However, there is no available evidence that the existence of the record of this NJP on the applicant's restricted fiche has or will disadvantage him in any way. Furthermore, even if it had been fully set aside, it would still be filed on his restricted fiche. Therefore, no injustice exists and granting the requested relief is not appropriate.
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
_MHM___ __WDP _ __FCJ __ DENY APPLICATION
| CASE ID | AR2003083655 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20031021 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | |
| 2. | |
| 3. | |
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