MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 June 2003
         DOCKET NUMBER: AR2003090019

         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
Mrs. Victoria A. Donaldson		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. John P. Infante		Member
Ms. Eloise C. Prendergast		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)

---

APPLICANT REQUESTS: In effect, that two Article 15s be removed from his military records.

APPLICANT STATES: In effect, that counsel will present his arguments.

COUNSEL CONTENDS: In a four page attachment to the applicant’s DD Form 149 (Application For Correction of Military Record) that his records be corrected by expunction of the Article 15 dated 24 November 1986 and Article 15 dated
1 June 1987 from his official military personnel file (OMPF).

Counsel states that the applicant enlisted in the Army in August of 1986 and that he served honorably for nearly 17 years. He further states that the applicant’s OMPF reflects significant accomplishments and consistently outstanding performance, with consistent 1 and 2 “block” ratings by his senior raters and sustained “1 block” evaluations since approximately 1995.

Counsel argues that although the applicant received two Article 15s when he was an E-2, he was selected for Staff Sergeant in 4.5 years, a time in service considered to be “fast-track” and selected to Sergeant First class after just
7.5 years, “again unusually fast.” The applicant’s date of rank to the grade of Sergeant First Class is 1 July 1996.

Counsel also states that in addition to superior performance evaluations, the applicant has been awarded the Joint Service Commendation Medal, the Joint Service Achievement Medal, the Army Commendation Medal, the Army Achievement Medal with 5 Oak Leaf Clusters, the Good Conduct Medal with
4 Oak Leaf Clusters, the Military Parachutist Badge, Air Assault Badge and numerous Certificates of Completion and Certificates of Achievement over the course of his most successful career.

Counsel acknowledges that the applicant’s records reflect two Article 15s in the “Restricted” portion of his OMPF. The first Article 15 was imposed by his Company commander, a Captain, on 24 November 1986, for punching another soldier. The punishment imposed was forfeiture of $167.00 in pay, restriction for 14 days and extra duty for 14 days. The applicant did not appeal and the Company Commander directed that the Article 15 be placed in the applicant’s Restricted portion of his OMPF.

Counsel further acknowledges that the applicant received a field grade Article 15 again while serving in the pay grade of E-2. The offense was conspiracy and theft through use of another soldier’s ATM card to obtain $250.00. The applicant’s punishment included reduction in pay grade to E-1, forfeiture in pay of $250.00 for one month and extra duties for 45 days. The applicant did not appeal and the Battalion Commander, a Lieutenant Colonel, directed that the Article 15 be placed in the Restricted portion of his OMPF.

Counsel argues that the instruction governing filing of records of non-judicial punishment (NJP), which is listed in 600-8-104 (Military Personnel Information Management/Records), shows that DA Form 2627 (Record of Proceedings under Article 14, UCMJ) issued after January 1990 to soldiers serving in the pay grades E-4 and below will be filed only in local files.

Counsel points out that from 1 November 1982 until January 1990, the issuing commander directed where a DA Form 2627 would be filed, in either the performance section or restricted section of the OMPF. The two Article 15s here at issue were filed in the applicant’s Restricted portion of his OMPF pursuant to the provisions of this regulation.

In addition, counsel states that, at the time the Article 15s were issued, Army Regulation 640-10 (Individual Military Personnel Records) which established the policies and provisions for maintenance and release of information in the OMPF, stated that “although not routine, the Restricted fiche may be released to a DA Selection board”. The Board president was required to request permission from the Office of the Deputy Chief of Staff for Personnel to review specific restricted information when the Board President believed that the information was crucial to the selection process. There was no provision in the regulation in effect at the time for routinely providing information in the Restricted fiche to selection boards.

Counsel cites a case that was reviewed by the ABCMR in which, the ABCMR directed that a record of non-judicial punishment to a soldier then serving in the pay grade of E-4 should be expunged from the soldier’s OMPF. In deciding the case, the Board noted that at the time the soldier received the Article 15, the information in the Restricted fiche was not routinely provided to selection boards noted that the policy since has changed. As a result the ABCMR concluded that:

“an injustice arises out of the fact that the applicant’s 1986 record of NJP, which was filed in the belief that it would not be seen by the selection boards, will not automatically be seen when he is considered for…promotion or attendance at the SGM academy.”

Counsel continues that like the soldier in the earlier case, the applicant has an “exceptional record of performance as evidence by his outstanding performance evaluation reports, [awards] and promotion to pay grade E-7 with less than
10 years.”

Counsel argues that the purpose of the two Article 15s have been served and that in the interest of justice that they should be expunged from the applicant’s record.


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

The applicant entered the Army in 1986. He was trained as a supply specialist and has remained on continuous active duty. The applicant is currently serving in active duty as a sergeant first class, pay grade E-7.

DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated
24 November 1986, shows that nonjudicial punishment was imposed against the applicant for assaulting a fellow soldier. His punishment consisted of forfeiture of pay in the amount of $167.00, 14 days restriction and 14 days extra duty.

DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated
1 June 1987, shows that nonjudicial punishment was imposed against the applicant for larceny of United States currency, of value 250.00. His punishment consisted of forfeiture of pay in the amount of $250.00, 45 days extra duty and reduction to private E-1.

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 Official Military Personnel File, 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 Official Military Personnel File 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, the Department of the Army Suitability Evaluation Board, Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) 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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board considered the applicant’s contention that the two Article 15s have served their purpose and that in the interest of justice that they should be removed from his OMPF.

2. The Board determined that there is no evidence and the applicant has provided no evidence, that the Article 15s were in error or unjust.

3. The Board noted the serious nature of the applicant’s offenses, specifically assault on a soldier and larceny.

4. The Board also noted that the applicant did not appeal or otherwise contest the punishment directed by the Article 15s.

5. Prior decisions of the ABCMR are not a basis for removal of the nonjudicial punishments in this case.

6. Army Regulation 27-10 and Army Regulation 15-185 (Policy and Procedures for Applying to the Army Board for Correction of Military Records) specifically preclude the removal of a valid DA Form 2627 from a soldier’s records, by the ABCMR, without compelling evidence.

7. The Boards finds no compelling evidence to support removal of the applicant’s nonjudicial punishments; therefore these two records will not be expunged.

8. 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.

9. 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

__RVO__ ___JPI __ __ECP__ DENY APPLICATION

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

---

INDEX

CASE ID	AR
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.