RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 December 2003
         DOCKET NUMBER: AR2003091313


         I certify that hereinafter is recorded the true and complete record of the proceedings 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. Walter T. Morrison		Chairperson
Mr. Allen L. Raub		Member
Mr. Kenneth W. Lapin		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).


1. The applicant requests that the Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) and all related documents be transferred from his performance fiche to his restricted fiche.

2. The applicant states the Article 15 has served its purpose and prevents him from rising to his full potential as a soldier.

3. The applicant provides his memorandum to the Department of the Army Suitability Evaluation Board (DASEB) dated 23 March 2003 and a memorandum from DASEB dated 16 May 2003.

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Regular Army on 23 January 1992. He completed the required training and was awarded the military occupational specialty 95B (Military Police). He has continued to serve on active duty through a series of reenlistments.

2. On 15 December 2000, the applicant was punished under Article 15, UCMJ for committing adultery between 9 January 2000 and 9 February 2000.

3. The applicant elected not to demand trial by court-martial, requested a closed hearing in the Article 15 proceedings, and elected to present matters in his defense.

4. After consideration of all matters presented in the closed hearing, the imposing commander decided that, beyond a reasonable doubt, the applicant committed the offense and imposed the punishment of forfeiture of $100.00 pay per month for 1 month (suspended) to be automatically remitted if not vacated before 31 December 2000 and a written reprimand.

5. The imposing commander directed that the Article 15 be filed in the applicant's performance fiche of his Official Military Personnel File (OMPF) and was advised of his right to appeal the punishment. The applicant accepted the Article 15 and elected not to appeal the punishment. The allied documents to the Article 15 were filed on the restricted portion of the applicant's OMPF.

6. The applicant was promoted to staff sergeant with an effective date and date of rank of 1 April 2001.

7. The applicant appealed to the DASEB on 23 March 2003 to transfer the Article 15 to his restricted fiche. The DASEB denied the applicant's request on 16 May 2003.
8. 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.

9. Paragraph 3-43b(1) of Army Regulation 27-10 states that enlisted soldiers (SGT and above), commissioned and warrant officers may request the transfer of a record of nonjudicial punishment from the performance fiche section of their OMPF to the restricted section under the provisions of this regulation. To support the request, the person must submit substantive evidence that the intended purpose of Article 15 has been served and that transfer of the record is in the best interest of the Army.

10. Paragraph 3-43b(4) of Army Regulation 27-10 states that the officer who directed the filing of the record in the OMPF (of enlisted soldiers (SGT and above) and commissioned and warrant officers) may provide a statement to the soldier in support of a request for transfer of the record from the performance to the restricted section.

11. 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 DASEB, 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.

DISCUSSION AND CONCLUSIONS :

1. The applicant received an Article 15 on 15 December 2000 for committing adultery between 9 January 2000 and 9 February 2000.
2. The evidence of record shows the Article 15 was properly filed on the performance fiche of his OMPF and all the related documents were filed on the restricted in accordance with applicable regulations.

3. There is no evidence from the officer who directed the filing of the Article 15 or from his current chain of command supporting his request.

4. The applicant was promoted to staff sergeant within a year after he received the Article 15. There is no evidence which shows this nonjudicial punishment has prevented him from "rising to his full potential as a soldier."

5. There is no evidence which shows the Article 15 was filed in error or was unjust. There is insufficient evidence to show the Article 15 has served its intended purpose at this time.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

ALR _____ ________ ________ GRANT FORMAL HEARING

________ WTM ______ KWL _____ DENY APPLICATION


The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  Walter T. Morrison ____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091313
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031204
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.	126.0500
2.
3.
4.
5.
6.