MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003087985

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		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 essence, that the DA Form 2627, Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice), imposed against him on 19 January 2000 be set aside; that it and all references to it be completely removed from his Official Military Personnel File (OMPF); that he be restored to his rank to staff sergeant and that his forfeitures be rescinded.

APPLICANT STATES: That the subject nonjudicial punishment (NJP) imposed against him under Article 15, UCMJ, is unjust because his guilt was not proven beyond a reasonable doubt. He reasons, therefore, that his OMPF is incorrect.

The applicant states in a memorandum, dated 20 May 2002 and written to the Department of the Army Suitability Evaluation Board (DASEB), that his accuser made specific descriptive statements about his body and his privately-owned vehicle (POV), a truck, that were not true and completely incorrect; that his wife provided alibis to substantiate his whereabouts on several of the dates his accuser alleged he was with her; and that he accepted the NJP in lieu of court-martial on the advice of his legal counsel. He adds that he would not have accepted the NJP had he known it would taint his record to the extent that it has. Rather, he would have opted for a court-martial to prove his innocence.

In support of his application, the applicant submits several documents, to include: a body fat content worksheet, dated 13 December 1999; a sworn statement given to military police by his accuser, dated 14 December 1999; a statement written by a second trainee, dated 8 January 2000; a clinical record of physical examination detailing his anatomy; a statement written by his wife, dated 12 January 2000; memoranda of appeal, dated 18 and 24 January 2000; a memorandum written to the DASEB, dated 20 May 2002; and a response from DASEB, dated 25 June 2002.

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

That he is currently a Sergeant, pay grade E-5, assigned to Korea and serving in military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic). In January 2000, he was a Staff Sergeant serving as a drill sergeant at Fort Jackson, South Carolina.

On an unknown date, a female soldier-in-training alleged that the applicant engaged in an inappropriate association with her. Following completion of an investigation by military police investigators, the applicant's battalion commander charged him with wrongfully engaging in an illegal association with a soldier-in-training, not his wife, by allowing her to enter and ride in his POV; having personal and sexual conversations with her; providing her with his personal pager number; kissing, fondling, engaging in sexual intercourse and committing sodomy with her on divers occasions between on or about 3 December and 14 December 1999.
The battalion commander offered the applicant NJP which he accepted on 19 January 2000. During the closed NJP hearing, the applicant was questioned about the allegations, as was the lead military police investigator. After hearing all testimony and reviewing all evidence, the battalion commander imposed punishment on the applicant consisting of reduction from Staff Sergeant to Sergeant (pay grade E-6 to pay grade E-5) and forfeiture of $966 pay per month for 1 month. The battalion commander directed that the NJP be filed in the applicant's Performance Fiche of his OMPF.

The applicant appealed the NJP to his brigade commander. In so doing, the applicant brought out all of the issues that he raises with this Board, to include: the untrustworthiness of his accuser and others; the alibis provided by his wife; the discrepancies between his accuser's description of his body and POV and the actual state of both. On 28 January 2000, the brigade commander, after considering all of the matters offered by the applicant, denied the appeal. It was determined the NJP proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate to the offenses committed.

Army Regulation 27-10 provides policy for the administration of military justice. Chapter 3 provides that NJP is appropriate in all cases involving minor offenses in which nonpunitive 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; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further 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 unsworn 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.

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. As its name indicates, NJP is different from a trial by court-martial. An NJP hearing is a more informal proceeding where the rules of evidence need not be strictly applied. Before the applicant elected to accept NJP, he was made aware of these differences and of his right to demand trial by court-martial wherein he would receive the full protection of the rules of evidence. Instead he chose to have the matter settled at NJP.

3. The applicant's NJP was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was neither unjust nor disproportionate to the offenses, and there is no evidence of any violation of any of the applicant's rights.

4. The applicant has not presented a valid reason for removal of his NJP from his OMPF or for rescinding the forfeiture or reduction.

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

__aao___ __tl____ __hbo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087985
SUFFIX
RECON
DATE BOARDED	20030828
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0000
2.
3.
4.
5.
6.