RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 March 2005
      DOCKET NUMBER:   AR20040001988


      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. Rosa M. Chandler              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Susan A. Powers               |     |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 the DA Form 2627, Record of Proceedings
Under Article 15, UCMJ (Uniform Code of Military Justice (UCMJ), imposed
against him on 19 August 2002 be transferred from the Performance Section
of his Official Military Personnel File (OMPF) to the Restricted Section of
the OMPF.

2.  The applicant states, in effect, that he was reduced in rank from staff
sergeant to sergeant as a result of the above UCMJ action.  He has regained
his rank and his last Non-Commissioned Officer Evaluation Report (NCOER)
shows that he has been successfully rehabilitated.  He believes the removal
of the NJP from the Performance Section of the OMPF will assist him in
advancing in the military.

3.  The applicant provides a copy of the NJP dated 19 August 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a staff sergeant serving on active duty at Fort
Benning, Georgia.  He performs duties in military occupational specialty
(MOS) 25F (Network Switching Systems Operator/Maintainer).  His date of
rank (DOR) is 1 March 2004.

2.  In the summer of 2002, the applicant was a staff sergeant assigned to
the US Army Recruiting Command (USAREC) as an Army recruiter in the
Milwaukee, Wisconsin area.  His DOR was 1 April 1999.

3.  During an open hearing on 17 August 2002, the applicant's recruiting
battalion commander considered the evidence and offered the applicant NJP
for violating a general lawful regulation by wrongfully falsifying
educational and enlistment documents on three recruits; concealing law
violations on seven recruits; and for concealing medical information on two
recruits between 1 September 2001 and 31 March 2002.  The applicant
accepted the NJP and the battalion commander imposed punishment consisting
of reduction from staff sergeant to sergeant.  The battalion commander
directed that the NJP be filed on the Performance Section of the
applicant's OMPF.

4.  On 19 August 2002, the applicant appealed the NJP action.  On 22 August
2002, the brigade commander, after considering all of the matters offered
by the applicant, denied the appeal.  It was determined the NJP proceedings
were conducted in accordance with law and regulation and the punishment
imposed was not unjust or disproportionate to the offenses committed.

5.  On 31 December 2002, the applicant was issued a written memorandum and
that he was being administratively removed from the Sergeant First Class
Promotion Selection List based on his reduction in rank.

6.  On 26 September 2003, the Department of the Army Suitability Evaluation
Board (DASEB) returned the applicant's appeal without action.  The
applicant was advised that his request for transfer of unfavorable
information was considered an exception to policy and that at the present
time the DASEB was not granting such exceptions.

7.  Army Regulation 27-10 provides policy for the administration of
military justice.  Chapter 3 provides that NJP is appropriate in all cases
involving minor offenses in which nonpunitive measures are considered
inadequate or inappropriate.  It is a tool available to commanders to
correct, educate and reform offenders whom the commander determines cannot
benefit from less stringent measures; to preserve a member's record of
service from unnecessary stigma by record of court-martial conviction; and
to further military efficiency by disposing of minor offenses in a manner
requiring fewer resources than trial by court-martial.  The imposing
commander is not bound by the formal rules of evidence before courts-
martial and may consider any matter, including unsworn statements the
commander reasonably believed to be relevant to the case.  Whether to
impose punishment and the nature of the punishment are the sole decisions
of the imposing commander.  However, the Soldier has the right to accept
NJP or reject it and demand trial by court-martial prior to the start of
the hearing and consideration, examination, or presentation of evidence.
The Soldier's decision to accept NJP is irrevocable, but should the Soldier
consider requesting trial, he/she will be told that such trial could be by
summary court-martial (SCM), special court-martial (SPCM), or general court-
martial (GCM).  The Soldier will also be told that he/she may object to
trial by SCM and that, at SPCM or GCM, the Soldier would be entitled to be
represented by qualified military counsel, or by civilian counsel at no
expense to the Government.

8.  Army Regulation 27-10, chapter 3, also provides that NJP filing
instructions are the sole decision of the imposing commander.  In making a
filing determination, the imposing commander must weigh carefully the
interests of the Soldier’s career against those of the Army to produce and
advance only the most qualified personnel for positions of leadership,
trust, and responsibility.  In this regard, the imposing commander should
consider the Soldier’s age, grade, and total service.  The interests of the
Army are compelling when the record of NJP reflects unmitigated moral
turpitude or lack of integrity, patterns of misconduct, or evidence of
serious character deficiency or substantial breach of military discipline.
In such cases, the record should be filed in the performance section.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's NJP was imposed in compliance with applicable laws,
regulations and policies.  The punishment imposed was neither unjust nor
disproportionate to the offenses, and there is no evidence of any violation
of any of the applicant's rights.

2.  The applicant's behavior was unethical and demonstrates a lack of
integrity.  His recent success in performing duties of his primary MOS are
noted, but fail to demonstrate a valid reason for removal of the NJP from
the Performance section of his OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __phm___  __sap___  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.



                             Melvin H. Meyer
                       ______________________
                               CHAIRPERSON




INDEX

|CASE ID                 |AR20040001988                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050329                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |134.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



























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