MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 18 November 2003
                  DOCKET NUMBER: AR2003087944

         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. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		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 the nonjudicial punishment he received be removed from his records. He also requests that he receive severance pay to which he is entitled. In addition, he requests to appear before the Board.

APPLICANT STATES: That he did not deserve the nonjudicial punishment he received which led to his involuntary early discharge from the U.S. Army. He contends that he did not get a fair and just ruling by his commanding officer and he did not receive any severance pay upon being discharged from the Army.

The applicant submitted a supplemental letter in support of his application.

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

After having served in the Regular Army, the U.S. Army Reserve, and the Army National Guard, the applicant enlisted in the Regular Army on 2 March 1976. The applicant reenlisted on 15 July 1980 for a period of 6 years and later extended for 7 months.

The applicant was promoted to staff sergeant on 5 March 1982.

On 5 April 1984, the applicant was punished under Article 15, UCMJ for being derelict in the performance of his duties by negligently failing to properly secure an M16-A1 rifle that was entrusted to him by another soldier. The applicant elected not to demand trial by court-martial, requested a closed hearing in the Article 15 proceedings, and declined to have a person 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 offense and imposed the punishment of reduction to the pay grade of E-5, extra duties for 45 days in a supervisory capacity, and forfeiture of $50.00 pay per month for 2 months.

The imposing commander directed that the Article 15, UCMJ be filed in the applicant's performance fiche of his Official Military Personnel File (OMPF). The applicant appealed the punishment and elected to submit matters in his behalf. The applicant's appeal is not present in his records.

On 26 April 1984, a Staff Judge Advocate considered the applicant's appeal and determined that the proceedings were conducted in accordance with law and regulation. The appeal was denied on 9 May 1984 and the applicant acknowledged the action taken on his appeal.

In a 25 September 1986 letter, the applicant was informed that his OMPF had been reviewed by a Department of the Army Selection Board and the board determined that he be barred from reenlistment. The documents which contributed to the board's decision are not shown in the applicant's records. The applicant was advised of the options available to him and to complete the DA Form 4941-R (Statement of Options, Qualitative Management Program (QMP)). The applicant's Statement of Options is not present in his records.

There is no record of an appeal of the bar to reenlistment under the QMP in the applicant’s personnel file.

On 13 February 1987, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 4 upon the completion of his expiration of term of service with a reenlistment code of "4." He had completed 12 years, 11 months, and 7 days total active military service.

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.

Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, 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 OMPF 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 (ABCMR), the Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the OMPF custodian when documents have been improperly filed, Total Army Personnel Command 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.

Army Regulation 601-280, chapter 10, in effect at the time, set forth policy and prescribes procedures for denying reenlistment under the QMP. This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to: (1) enhance quality of the career enlisted force,
(2) selectively retain the best qualified soldiers to 30 years of active duty,
(3) deny reenlistment to nonprogressive and nonproductive soldiers, and
(4) encourage soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram. Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the DA promotion selection boards. The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted. Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Department of Defense Financial Management Regulation (DODFMR) Volume 7A, states that enlisted soldiers were authorized either full or half separation pay, depending on the circumstances of their involuntary separation, effective 20 June 1991.

Army Regulation 15-185 governs operations of the ABCMR. Paragraph 2-11 of this regulation states that applicants do not have the right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires.

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. The Board notes the contentions submitted by the applicant. However, there is no evidence of record which shows that the nonjudicial punishment he received on 5 April 1984 was in error or unjust.

3. The Board notes that Army Regulation 27-10 and Army Regulation 15-185 preclude the removal of a valid DA Form 2627 from a soldier's record by the ABCMR without compelling evidence. The Board finds no compelling evidence to support removal of the applicant's Article 15, UCMJ. Therefore, there is insufficient basis in which to remove the applicant's Article 15, UCMJ dated 5 April 1984 from his records.

4. The Board also notes the applicant's request for severance pay. However, severance pay (i.e. separation pay) was not authorized for enlisted soldiers until 20 June 1991.

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

JNS_____ MDM_____ BJE_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087944
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031118
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.	126.0000
2.	128.0800
3.
4.
5.
6.