RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 April 2005
      DOCKET NUMBER:  AR20040001006


      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. Paul Wright                   |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Ms. Jeanette R. 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, in effect, that the DA Form 2627 (Record of
Proceedings Under Article 15, UCMJ), dated January 2002, be removed from
the Restricted Fiche of her restricted Official Military Personnel File
(OMPF).

2.  The applicant states the Article 15 has been proven to be a clear
injustice to her.  It was imposed by a command that didn't have clear
jurisdiction over her.  Further, when this matter was presented to the
command with jurisdiction, it was set aside.  Through the mishandling of
paperwork, the situation has yet to be corrected.

3.  The applicant provides a copy of a Memorandum for Record, dated 22
April 2004, from her commander; a copy of a legal opinion, dated 27 March
2002, from the Trial Defense Service to the applicant's commander; and a
copy of DA Form 2627-2 (Record of Supplementary Action under Article 15,
UCMJ), dated 6 May 2004, setting aside the non-judicial punishment
previously imposed.

CONSIDERATION OF EVIDENCE:

1.  On 29 July 1992, the applicant enlisted in the Regular Army for a
period 4 years.  Later on 12 August 1994, she extended for a period of 12
months.  Subsequently, she reenlisted on 29 November 2000 for a period of 2
years.  Evidence of record indicates two additional reenlistments.  Her
current reenlistment of 14 September 2004 is for an indefinite period of
years.

2.  The applicant was assigned to Company A, 1st Battalion, 11th Infantry,
Fort Benning, Georgia.  During 2002, the applicant was assigned on
Temporary Duty (TDY) status to Headquarters and Headquarters Company, U.S.
Army Forces, U.S. Central Command – Saudi Arabia (ARCENT-SA).  She went to
Saudi Arabia on a DD Form 1610 (Request and Authorization for TDY Travel of
DOD Personnel).  Although there is no copy of this form in the available
records, it would appear that her unit did not grant authority to ARCENT-SA
to impose non-judicial punishment.

3.  On 30 January 2002, the applicant accepted non-judicial punishment
(NJP) under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ) for disobeying a lawful order from a noncommissioned officer on 8
January 2002 and missing a directed movement on 15 January 2002.
Punishment included forfeiture of $483.00 pay per month for one month.  The
Commander directed that the proceedings be filed on the Restricted Fiche of
the OMPF.
4.  On 27 March 2002, the Trial Defense Service, Fort Benning, Georgia
opined that the Commander who imposed the NJP in Saudi Arabia did not have
authority to do so.  Her command at Fort Benning never officially delegated
or relinquished its jurisdiction over the applicant.  The Trial Defense
Service requested that the NJP be set aside.

5.  On 6 May 2004, the NJP was set aside.  However, it was not removed from
her Restricted Fiche.

6.  Army Regulation 27-10 (Military Justice), in pertinent part, states the
applicable policies for NJP.  The regulation states that NJP 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 NJP 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.

7.  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 placed in the OMPF, a document becomes a permanent part
of that file. The document will not be removed from a fiche or moved to
another part of the fiche unless directed by the following:  (1) The Army
Board for Correction of Military Records (ABCMR); (2) The Department of the
Army Suitability Evaluation Board (DASEB).; (3) Army appeal boards; (4)
Chief, Appeals and Corrections Branch, US Total Army Personnel Command
(PERSCOM, now US Army Human Resources Command-Alexandria); (5) The OMPF
custodian when documents have been improperly filed; (6) Commander,
PERSCOM, as an approved policy change to this regulation; (7) Chief,
Appeals Branch, Army Reserve Personnel Center (ARPERCEN, now US Army Human
Resources Command-St. Louis); or (8) Chief, Appeals Branch, National Guard
Personnel Center.

DISCUSSION AND CONCLUSIONS:

1.  The applicant clearly violated Army authority and rules.
Unfortunately, the ARCENT-SA commander, for unknown reasons, was not given
authority to administer NJP by her parent unit.

2.  The applicant's parent unit determined that she should not have
received the NJP based on proffered legal advice.  Therefore, they set
aside the NJP action; however, since it was already on her Restricted
Fiche, they had no authority to remove it from her OMPF.

3.  Since the applicant's parent unit felt she was not deserving of the
NJP, it would be appropriate at this time to remove it and all allied
documents from her Restricted Fiche as an exception to policy under the
authority of this Board.

BOARD VOTE:

__mdm___  __teo___  __jrm___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
removing the non-judicial punishment, dated 30 January 2002, and all
related documents from her Restricted Fiche as an exception to policy.




                                        Mark D. Manning
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001006                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050405                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.0600                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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