RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2004
      DOCKET NUMBER:  AR20040011755


      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:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |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 his nonjudicial punishments (NJPs) under
Article 15, Uniform Code of Military Justice filed on the restricted
portion of his Official Military Personnel File (OMPF) be expunged from his
records.

2.  The applicant states that he received NJP in 1987 and this was the last
time throughout his 22 years of service that he received NJP.  Since then,
his record of achievements has amounted to many positive career
developments and recognitions.  He stated that sometime in 2002 or 2003,
the Army Board for Correction of Military Records (ABCMR) granted that all
the NJPs be transferred to his Restricted Fiche.  When he submitted his
promotion consideration packet to St. Louis for the Troop Program Unit
(TPU) Command Sergeant Major (CSM) Promotion Board, he was informed that
even though he had documents in his Restricted Fiche, they were subject to
be reviewed by the board members.  He states he was considered by the 2002
and the 2004 TPU CSM Promotion Board, but he was not selected.

3.  The applicant also states that even though his request for documents to
be transferred to his Restricted Fiche has been granted, he strongly
believes that discriminators still lie in his "viewable" records which
cause his chances for advancement to be dwarfed.  He states that it has
been 17 years since the last derogatory NJP action and he has achieved
great success in his military career, including completing the Sergeant
Majors Course ahead of his regularly scheduled time.  He strongly feels he
is not being fairly evaluated based on his merits and character as a
current leader of Soldiers.  He states that he is still being persecuted
for errors in judgment during the time he was a junior, developing leader
as a Military Policeman (MP).  He has cleared hurdles in his path wisely
and has been properly mentored towards becoming a MP leader of Soldiers.
He wants to continue his service to Soldiers, not "look onto the past as
lessons learned" and not have his character impeached and ostracized based
on a human mistake during his early years of active duty development.

4.  The applicant provides his Enlisted Evaluation Report for the period
ending February 1988; nineteen Noncommissioned Officer Evaluation Reports
covering the period September 1988 through May 2004; six Service School
Academic Evaluation Reports (DA Form 1059); his certificate awarding him
the Mission Excellence Award; five Recommendation of Awards (DA Form 638)
with accompanying award certificates; his Recommendation for Award (For
Other Than Valor) of the Army Achievement Medal, the Army Commendation
Medal, and the Meritorious Service Medal (DA Form 638-1) with accompanying
award certificate for award of the Army Commendation Medal (First Oak Leaf
Cluster); his Certificate of Appreciation; and his Certificate of
Achievement.
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 October 1982 for a
period of three years.  He completed the required training and was awarded
military occupational specialty 95B (Military Police).

2.  On 18 May 1984, while in pay grade E-4, the applicant accepted NJP
under Article 15 for wrongfully and unlawfully subscribing under lawful
oath a false statement and being derelict in the performance of his duties
by willfully failing to properly dispose of found evidence during an
investigation.  His punishment consisted of reduction to pay grade E-3,
suspended for 60 days, and a forfeiture of $164.00 for one month.  The DA
Form 2627 (Record of Proceedings Under Article 15, UCMJ) was filed on the
restricted portion of his OMPF.

3.  There is no evidence of record to show the suspended reduction was ever
vacated.  The applicant was promoted to sergeant, E-5 on 1 September 1985.

4.  The applicant was discharged on 4 June 1985 for the purpose of
immediate reenlistment.  He reenlisted on 5 June 1985 for a period of four
years.

5.  On 11 March 1987, while in pay grade E-5, the applicant accepted NJP
under Article 15 for wrongfully and unlawfully making under lawful oath a
false statement.  His punishment consisted of a forfeiture of $200.00 pay
for one month.  The DA Form 2627 was filed on the restricted portion of his
OMPF.

6.  On 17 October 1987, while in pay grade E-6, the applicant accepted NJP
under Article 15 for assault upon a specialist four, two specifications;
maltreatment of a detained suspect, two specifications; and being derelict
in the performance of his duties in that he willfully failed to report the
abuse of a detained suspect to his chain of command.  His punishment
consisted of a reduction to pay grade E-5 and a forfeiture of $300.00 pay
per month for two months.  The DA Form 2627 was filed on the performance
portion of his OMPF.  On 20 October 1987, the applicant elected to appeal
the punishment and submitted additional matters in his behalf.  The appeal
was denied on 23 October 1987.

7.  The applicant applied to the ABCMR on 7 April 1988 to remove the NJP
imposed on 17 October 1987.  The ABCMR denied the applicant's request on
30 November 1988.

8.  On 4 June 1989, the applicant was honorably discharged from active duty
in the rank of sergeant, E-5.

9.  The applicant enlisted in the U.S. Army Reserve (USAR) on 5 June 1989
and continued to serve in the Reserve through reenlistments.  He is
currently serving in the Active Army Reserve (TPU) in the rank of First
Sergeant (1SG).

10.  The applicant applied to the ABCMR again on 17 September 2003.  A
letter dated 29 December 2003 from the Review Boards Agency, Support
Division in St. Louis, Missouri indicated that his request to "have Article
15 moved to the restricted fiche" had been completed.  The letter also
indicated that this action eliminated the necessity to forward his
application to the ABCMR.

11.  Army Regulation 27-10 (Military Justice) states, in pertinent part,
that enlisted Soldiers (E-5 and above) and officers may petition the
Department of the Army Suitability Evaluation Board (DASEB) for transfer of
record of NJP from the performance to the restricted portion of the OMPF.
To support the request, the person must submit substantive evidence that
the intended purpose of the Article 15 has been served and that the
transfer is in the best interest of the Army.  The regulation also states
that absent compelling evidence, a properly completed, valid DA Form 2627
will not be removed from a Soldier’s record.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records states, in pertinent part, that disciplinary information filed on
the restricted portion of the OMPF will be provided to the Command Sergeant
Major (CSM)/sergeant major (SGM) promotion, SGM Academy selection, and
SGM/SGM retention boards to ensure the best qualified Soldiers are selected
for these positions of highest trust.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received NJP  imposed under Article 15 on 17 October 1987
for assault upon a specialist four, two specifications; maltreatment of a
detained suspect, two specifications; and being derelict in the performance
of his duties by willfully failing to report the abuse of a detained
suspect to his chain of command. The imposing commander determined that it
would be appropriate to place the Article 15 in the performance fiche of
the applicant's OMPF.

2.  The evidence of record shows the Army Review Boards Agency in St. Louis
transferred the applicant's Article 15 imposed on 17 October 1987 to the
restricted portion of his OMPF without board action.  There are two earlier
Article 15s also filed on the restricted portion of his OMPF.

3.  Army Regulation 27-10 precludes the removal of a valid DA Form 2627
from a Soldier's record without compelling evidence.

4.  Army Regulation 600-8-104 provides a valid reason for retention of
Article 15s on the restricted fiche – when the time comes for the applicant
to be considered for selection to positions associated with grade E-9, his
disciplinary history must be provided to the selection board(s) to ensure a
fair comparison is made between all eligible Soldiers.  There is no
evidence of record which shows that any of the Article 15s were filed on
his restricted fiche in error.  The applicant has provided no compelling
evidence to support removal of his Article 15s.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

SP______  RD______  JM______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




                                  Shirley Powell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011755                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050913                                |
|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.       |126.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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