MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: 27 January 2004
                  DOCKET NUMBER: AR2003089181

         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:

Mr. Arthur A. Omartian		Chairperson
Mr. Lester Echols		Member
Ms. Yolanda Maldonado		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 two Article 15s be removed from his record and that he be reinstated to the rank of specialist/eE-4 (SPC/E-4).

APPLICANT STATES: In effect, that nonjudicial punishment (NJP) actions taken against him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 2 May 2001 and 13 December 2001 were unjust and were the result of racial discrimination. He further states that the two NJP actions in question resulted in his twice being reduced unjustly and resulted in his being denied the opportunity to take terminal leave and to attend school. In support of his application, he submits copies of the two DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) in question and a copy of a Developmental Counseling Form (DA Form 4856).

COUNSEL CONTENDS: In effect, that the two Article 15s in question are not filed in the applicant’s Official Military Personnel File (OMPF). Counsel further points out that enlistment contract documents on file in the applicant’s record confirm his participation in and eligibility for the Montgomery GI Bill (MGIB). Counsel also notes that the NJP actions in question had no adverse affect on the applicant’s final discharge, which was fully honorable. Given the NJP actions in question have served the intended purpose and because they were never filed in the OMPF, counsel requests that this adverse information submitted by the applicant as evidence not be made a part of his official record. In addition, counsel notes that the record shows the applicant should have been awarded the Army Good Conduct Medal (AGCM) and this award should be added to his record at this time.

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

On 13 January 1998,the applicant entered active duty in the Regular Army. During the enlistment process the applicant authenticated by signature a
DD Form 2366 (Montgomery GI Bill Act of 1984). This Annex to his enlistment contract confirms his participation in and eligibility for the MGIB.

The record shows that the applicant was trained and served in military occupational specialty (MOS) 92Y (Unit Supply Specialist), and that the highest rank he attained while serving on active duty was SPC. The record also shows that during his active duty tenure, he earned the Army Lapel Button and Army Service Ribbon.

The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of Permanent Orders Number 17-6, dated 17 January 2001, issued by the 502nd Service Battalion, Fort Hood, Texas, which awarded the applicant the AGCM for the period 13 January 1998 through 12 January 2001.

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On 30 January 2002, the applicant was released from active duty (REFRAD) after completing a total of 4 years and 18 days of active military service. The separation document issued to the applicant on the date of his REFRAD confirms that he was separated under the provisions of chapter 4, Army Regulation
635-200, by reason of expiration of term of service (ETS), and that he received an honorable characterization of service.

The two DA Forms 2627 provided by the applicant show that he accepted NJP on two separate occasions. The first on 2 May 2001, for disobeying a lawful order issued by a noncommissioned officer. The record of NJP provided by the applicant confirms that in connection with this 2 May 2001 action, the applicant elected not to demand trial by court-martial and chose to have his case considered by his unit commander in a closed hearing. It also shows that the applicant elected not to present matters in defense, mitigation, and/or extenuation at the closed hearing. The NJP imposed included the applicant’s reduction to the rank and pay grade of private first class/E-3 (PFC/E-3), forfeiture of $322.00 pay, 14 days extra duty, and 14 days restriction.

On 13 December 2001, the applicant accepted the second Article 15 in question, for two specifications of his failure to go to his appointed place of duty. The applicant again elected not to demand trial by court-martial and to have his case considered by his unit commander in a closed hearing. He again chose not to submit matters in defense, mitigation, and/or extenuation at the closed hearing. The NJP imposed included his reduction to the rank and pay grade of
private/E-2.

The applicant did not appeal either of the NJP actions and the record (DA Forms 2627) of these actions were not filed in his OMPF, as is provided for by the governing regulation for members in the grades of E-4 and below.

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, and Part V, Manual of Courts Martial. Paragraph
3-37 provides instructions on the disposition of the DA Form 2627. It states, in pertinent part, that for soldiers in the rank of SPC or CPL and below, the DA Form 2627 will be filed locally in unit nonjudicial punishment files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the soldier's transfer to another General Court-Martial Convening Authority (GCMCA), whichever occurs first.

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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 the NJP actions of 2 May 2001 and 13 December 2001 should be set-aside and his rank restored because these actions were the result of racial discrimination. However, while the Board takes very seriously any allegation of racial prejudice and would never let stand an action that resulted from racial bias, it finds no evidence of record or independent evidence submitted by the applicant that supports his racial discrimination allegation in this case.

2. The evidence provided by the applicant confirms that he accepted NJP on the two occasions cited and that in both cases he elected not to demand trial by
court-martial, he submitted no matters in defense, mitigation, and/or extenuation at the closed hearings, and he did not appeal either NJP action. Therefore, lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the processing of both NJP actions in question.

3. The Board further finds that the NJP records (DA Forms 2627) were properly filed locally and destroyed in accordance with the regulatory instructions. Further, the evidence shows that the DA Forms 2627 in question were never filed in the applicant’s OMPF or made a part of his permanent record, as provided for by regulation.

4. As noted by counsel, the applicant’s OMPF contains a copy of a DD Form 2366, which the applicant signed on 19 November 1997. This enlistment document shows that he participated in the MGIB upon his enlistment and it appears that the period of active duty service he completed and the honorable discharge he received would satisfy the criteria for receipt of this education benefit. The NJP actions referred to by the applicant, even if they had been filed in his OMPF, would not have impacted this benefit.

5. There appears to be no error in the record that would result in the applicant being denied MGIB benefits. However, this education benefit program is administered by the Department of Veterans Affairs (VA). Thus, the applicant should contact a local VA representative to obtain assistance in obtaining any education benefits due him or to determine the specific reason or reasons he is being denied MGIB benefits. If after receiving a VA determination, the applicant believes that there is some specific error related to his military records that is unjustly impacting his education benefits, he may reapply to the Board for relief on this issue. If the applicant does decide to reapply, he should provide the VA documentation containing the reasons for denial and any other evidence relevant to the denial of education benefits.

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6. The Army Review Boards Agency (ARBA) Support Division, St. Louis, will be requested to administratively add the AGCM to the applicant’s separation document.

7. 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.

8. 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.

NOTE: The ARBA Support Division St. Louis is directed to administratively correct the record of the individual concerned by adding the Army Good Conduct Medal to list of awards contained in his 30 January 2002 DD Form 214.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________GRANT FORMAL HEARING

AO____ ___LE__ _YM____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089181
SUFFIX
RECON
DATE BOARDED	2004/01/27
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2002/01/30
DISCHARGE AUTHORITY	AR635-200 Chapter 4. . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 133	126.0500
2.
3.
4.
5.
6.