MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 March 2003
         DOCKET NUMBER: AR2003085147

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Margaret K. Patterson		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: In effect, that nonjudicial punishment (NJP) imposed on him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) be set aside, and that the Record of Proceeding Under Article 15, UCMJ (DA Form 2627) be expunged from his Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that he was never informed of why all of a sudden he was receiving all types of negative counseling just prior to receiving the NJP in question. He claims that all the supporting documents, to include a letter from the Armed Forces Bank, were never reviewed by his chain of command. He claims that the car in question was never purchased because he discovered that it was a lemon. He states that he was constantly lied to by his chain of command during the time of the incident. In support of his application, he submits an appeal statement he submitted in connection with the NJP in question, a letter from the branch manager of the Armed Forces Bank, PX Branch, a request he made to see the battalion commander under the open door policy, a list of events he claims were harassment, and a community mental health consultation form.

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

At the time of his application to this Board, the applicant was serving on active duty as a sergeant/E-5 (SGT/E-5).

On 2 February 1999, while he was serving as a staff sergeant/E-6 at Fort Bliss, Texas, the applicant was informed by his unit commander the he was considering whether he should be punished under Article 15 of the UCMJ for making and uttering two bad checks in the amount of $500.00 each on or about
8 December 1998. The applicant after being afforded the opportunity to consult with counsel, decided not to demand a trial by court-martial, to request a closed hearing, to have a person speak in his behalf at the hearing, and to submit matters of mitigation and/or extenuation in person at the hearing.

On 3 February 1999, the applicant accepted NJP for the offenses outlined in the preceding paragraph. His punishment for these offenses was a reduction to SGT/E-5; a forfeiture of $873.00 pay per month for two months (suspended), and 45 days of extra duty and restriction. During the NJP proceedings, the applicant was advised by his unit commander that the DA Form 2627 would be filed in the restricted portion (R-Fiche) of his OMPF, and that he had 5 calendar days to appeal the action. The applicant elected to appeal the punishment imposed.

On 4 February 1999, a Judge Advocate General (JAG) officer considered the applicant’s appeal and opined that the proceedings were conducted in accordance with law and regulation and that the punishment imposed was not unjust nor disproportionate to the offense committed.
On 11 February 1999, after considering all matters presented in the appeal, the appellate authority denied the appeal.

The applicant provides documents he submitted in support of his appeal, in which it is indicated that the bad checks were written as a result of mismanagement and were not intentional. He further states that his past financial management history was misrepresented and although he cleared this up at the NJP hearing with the imposing commander, he believed this misrepresented history impacted the NJP action. He further explained the circumstances surrounding the purchase of and ultimate return of the car for which he wrote the checks. Further, he indicated that the checks in question were ultimately credited back to his account. However, he provides no evidence showing that the charge of writing bad checks was false. In fact, he explains that initially writing the bad checks was not intentional, but rather a matter of poor financial management of his funds, which is an admission that he did in fact write the bad checks.

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 implements and amplifies Article 15, UCMJ. Paragraph 3-18 contains guidance on the procedures for notification and the explanation of rights. It states that the imposing commander will ensure that the soldier is notified of the intention to dispose of the matter under the provisions of Article 15, UCMJ. The soldier will also be notified of the maximum punishment that the commander could impose, and the soldier will be provided a copy of the DA Form 2627 with items 1 and 2 completed, including the date and signature of the imposing commander.

The regulation further specifies that in connection with NJP processing, the soldier will be notified of the right to remain silent, the right to counsel, and the right to demand trial. Paragraph 3-29 contains the policy for appeals. It states that only one appeal is permissible under Article 15 proceedings, and it will be made within 5 calendar days after the punishment is imposed. The next superior authority to the commanding officer who imposed the Article 15 will act on an appeal.

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 notes the applicant’s contention that his punishment under Article 15, UCMJ was the result of improper actions on the part of his chain of command. However, it finds insufficient evidence to support this claim.

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2. The evidence of record confirms that the disposition and filing of the record of NJP accepted by the applicant on 3 February 1999, while he was serving as a staff sergeant/E-6 at Fort Bliss, Texas, was accomplished in accordance with applicable regulations. Further, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the NJP process.

3. In view of the facts of this case, the Board finds no evidentiary basis for setting aside the punishment imposed by the NJP action in question or for removing the DA Form 2627 from the applicant’s record. Further, it concludes that lacking any evidence to prove the applicant’s claim of impropriety on the part of his chain of command, he has failed to provide sufficient mitigation to warrant the requested relief.

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.

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

__JLP__ __ AAO _ __ MKP __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085147
SUFFIX
RECON
DATE BOARDED	2003/03/18
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1034	126.0600
2.
3.
4.
5.
6.