RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 JANUARY 2005
      DOCKET NUMBER:  AR20040000318


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Walter Morrison               |     |Chairperson          |
|     |Ms. Eloise Prendergast            |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that a record of nonjudicial punishment (Article
15) and a service school academic evaluation report (AER) be expunged from
his OMPF (Official Military Personnel File).

2.  The applicant states that the Article 15 punishment was administered
over      5 years ago.  He completed BNCOC (Basic Noncommissioned Officer
Course) in April 1996.  He would like to be able to compete with his peers
for promotion.

3.  The applicant provides a copy of a certificate showing completion of
BNCOC.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army for 3 years on 25 September 1986 and
has remained on continuous active duty, attaining the rank of staff
sergeant.

2.  The applicant is an infantryman, who served in numerous locations
throughout the world, to include Fort Campbell, Kentucky with the 101st
Airborne Division, in Hawaii with the 25th Infantry Division, at Fort
Leavenworth, Kansas with the Combined Arms Center, in Korea as a garrison
operations sergeant, at Fort Benning, Georgia with an infantry battalion,
and again in Korea with an air assault battalion.

3.  The applicant’s training included completion of an instructor training
course, tactics qualification course; and airborne, air assault, and ranger
training.  He has received eight awards of the Army Achievement Medal, five
awards of the Army Good Conduct Medal, two awards of the Army Commendation
Medal, and one award of the Meritorious Service Medal.  The applicant has
also been awarded the Expert Infantryman Badge and the Combat Infantryman
Badge.

4.  The applicant’s NCO Evaluation Reports (NCOERs) beginning in May 1992
show that his rating officials considered him a fully capable NCO on three
of his reports and among the best [for potential for promotion and
positions of greater responsibility) on four others, that is until his
report for the 12-month period ending in June 1998 when he received a
marginal report because of his failure to pay his debts and failure to obey
an order or a regulation.  His reports thereafter through April 2004,
however, show that his rating officials considered him among the best, an
NCO who should be promoted immediately and sent to ANCOC (Advanced NCO
Course).

5.  In April 1994 the applicant attended the BNCOC at Schofield Barracks in
Hawaii.  He was released from that school on 11 May 1994 because he was a
second time failure on the written examination career management field
(land navigation).  He received an adverse academic evaluation report
showing that he failed to meet course standards.  The report was referred
to the applicant for acknowledgment and comment.  He acknowledged receipt
and elected not to submit statements in his own behalf.  The AER and all
related documents were properly filed in the performance section of his
OMPF.

6.  In April 1996 the applicant successfully completed BNCOC at Fort
Campbell.

7.  On 31 July 1998 while assigned to Fort Leavenworth, Kansas, the
applicant received nonjudicial punishment for failing to obey a lawful
order, for violating a lawful general regulation, and for driving a motor
vehicle with a suspended driver’s license.  He was sentenced to a suspended
reduction to sergeant, to be automatically remitted if not vacated before
27 January 1999.  The applicant did not appeal the punishment.  The officer
administering the punishment directed that the record of punishment be
filed in the restricted fiche of his OMPF.

8.  In March 2002 the applicant made application to this Board, requesting
that his service school AER for the period 20 April 1994 through 11 May
1994 be removed from his OMPF or transferred to the restricted fiche of his
OMPF.  On 27 June 2002 the Board granted his request to transfer the AER
and all related documents to the restricted fiche of his OMPF.  In so
doing, the Board indicated that whereas there was no regulatory basis for
removing the AER, there were equitable reasons for its transfer to the
restricted portion of his OMPF, since he had now successfully completed
BNCOC.

9.  Army Regulation 600-8-104 states that the restricted fiche is used for
historical data that may normally be improper for viewing by selection
boards or career managers.  The release of information on this fiche is
controlled.  Documents on the restricted fiche are those that must be
permanently kept to maintain an unbroken, historical record of a Soldier's
service, conduct, duty performance, and evaluation periods; record
investigation reports; record appellate actions; and protect the interest
of the Soldier and the Army.

10.  Once placed in the OMPF, the document becomes a permanent part of that
file and will not be removed from a fiche or moved to another part of the
fiche unless directed by certain agencies, to include the Army Board for
Correction of Military Records (ABCMR).


DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's commanding officer, after hearing the applicant out,
chose to administer nonjudicial punishment to him.  By accepting the
punishment, the applicant acknowledged that he did wrong – that he was
guilty of the charged offense.  He elected not to appeal the punishment and
the record of the proceedings was filed in the restricted portion of the
applicant's OMPF.

3.  By the same token, the adverse AER was properly administered and
maintained in the performance portion of the applicant’s OMPF; and
appropriately transferred to the restricted portion of his OMPF as a matter
of equity, as indicated above.

4.  Careful consideration has been given to the applicant’s service.  His
service  has been commendable as evidenced by his evaluation reports, the
awards that he has received, the training he has completed, and by his
promotion to his current rank.  He received the adverse AER 10 years ago
because of his failure to complete BNCOC, which he subsequently completed
in 1996.  He received the Article 15 over 6 years ago, and the intended
effect of that punishment has been served.

5.  The applicant's inference that the record of his punishment and adverse
AER, contained in the restricted portion of his OMPF, would have a
detrimental effect on his Army career, e.g., that he would be unable to
compete with his peers for promotion, is highly speculative and unlikely.
The record and the document setting aside the punishment are permanently
kept to maintain an unbroken, historical record of his service, conduct,
appellate actions, etc., and are necessarily maintained to protect both
himself and the Army, and are tightly controlled.  The release of records
in that fiche is highly improbable.

6.  The Army has an obligation to maintain a complete and accurate record
of an individual's service.  The placement of records/documents, such as
the record of nonjudicial punishment on the restricted fiche, in a
Soldier's OMPF, enables the Army to maintain that historical record without
unduly jeopardizing the individual's career.  There is no injustice in
maintaining the record of nonjudicial punishment  and adverse AER as they
are now, in the restricted fiche of his OMPF.  Therefore, the removal of
the record of nonjudicial punishment and the adverse AER and related
documents from the applicant's OMPF is not warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WM__  ___EP __  ___JM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 Morrison  _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000318                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050113                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]