RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         02 DECEMBER 2004
      DOCKET NUMBER:  AR2004105588


      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. Raymond Wagner                |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Ms. Laverne Berry                 |     |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 record of nonjudicial punishment
(Article 15) be removed from the restricted portion of his official
military personnel file (OMPF).

2.  The applicant states that the Article 15 has served its purpose.  It is
unjust that the record be maintained, hindering his possible promotion.  He
has proved over the past 15 years, as evidenced by the letters of support
that he submits, that it is in the best interest of the Army that the
Article 15 be removed from his record.  He has been promoted to key
positions of leadership in the past           15 years; however was unaware
that the Article 15 would hinder his goal of becoming a command sergeant
major.  He has been passed over twice.  The Article 15 could be the only
reason for his nonselection.

3.  The applicant provides a copy of his enlisted record brief; copies of
letters of support from officers and noncommissioned officers, to include
the Deputy Commanding General, United States Army Recruiting Command, a
battalion commander, company commander, and four command sergeants major,
and his former infantry battalion command sergeant major; a copy of the
Article 15; and a copy of a memorandum from the Department of the Army
Secretariat indicating that the record of his Article 15 was released to
the CY03 Command Sergeant Major/Sergeant Major Selection Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army for 4 years on 1 September 1981 and
has remained on continuous active duty.  The applicant's evaluation reports
show that he was an infantryman until 1991.  He served as a team leader,
assistant squad leader, and squad leader.  His evaluation reports show that
his rating officials considered him an excellent Soldier.  He was promoted
to sergeant in January 1984 and staff sergeant in January 1987.  He
completed the basic NCO (noncommissioned officer) course in July 1987.  He
attended the Bradley Master Gunner Course at Fort Benning, Georgia from
October 1989 to February 1990, but failed to achieve course standards.

2.  In 1991 the applicant was assigned as a field recruiter with the Dallas
Recruiting Battalion in Irving, Texas.  His duties thereafter have been in
the recruiting field.  His NCO evaluation reports show that his rating
officials considered him an outstanding NCO, with remarks such as "promote
now" and "promote immediately."  He was promoted to sergeant first class on
17 August 1994.  His assignments included duties as a station commander,
guidance counselor, and first sergeant of a recruiting company in 1998,
while yet a sergeant first class.  He completed the first sergeant course
at the Sergeants Major Academy in October 1998.  The laudatory remarks by
his rating officials continued, e.g., "promote ahead of peers," and "ready
for first sergeant," etc.  On 17 April 2000 he was promoted to master
sergeant.  His NCO evaluation reports show that his rating officials opined
that he should be promoted to sergeant major immediately, sent to the
Sergeants Major Academy, and selected for command sergeant major.


3.  The applicant served as in infantryman in Saudi Arabia and was awarded
the Army Commendation Medal for meritorious achievement.  He participated
in Operation Desert Storm and was awarded the Combat Infantryman Badge and
an Army Commendation Medal for meritorious service.  On 17 April 1991 he
was awarded the Soldiers Medal for heroism.

4.  The applicant has received numerous recruiting awards, to include the
Gold Recruiting Badge with three sapphire achievement stars.  His other
awards, in addition to the Soldiers Medal, include two awards of the
Meritorious Service Medal, six awards of the Army Commendation Medal, five
awards of the Army Achievement Medal, and seven awards of the Army Good
Conduct Medal.

5.  The Article 15 that the applicant received shows that on or about 23
June 1988 he assaulted a private first class by striking him in the face
and then slamming his face against the wall, assaulted a sergeant by
punching him in the ribs, was drunk on duty, and violated a direct order
from a commissioned officer. The punishment was imposed on 7 July 1988.
His commanding officer directed that the record of punishment be placed in
the applicant's restricted fiche.

6.  Army Regulation 27-10 provides policy for the administration of
military justice.  Chapter 3 provides that nonjudicial punishment (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.  It also provided that the officer imposing NJP determines whether
the report of NJP (DA Form 2627) is to be filed on the individual's
restricted or performance fiche.

7.  Army Regulation 600-8-104 states, in pertinent part, that the
performance fiche of the OMPF is used for filing performance, commendatory,
and disciplinary data.  It states that the restricted fiche is used for
historical data that may normally be improper for viewing by selection
boards or career managers.  Its release is highly controlled.  It does
state, however, that disciplinary information filed on the restricted fiche
will be provided to the Command Sergeant Major/Sergeant Major (CSM/SGM),
SGM Academy selection, and CSM/SGM retention boards to ensure the best
qualified soldiers are selected for these positions of highest trust.  For
the purposes of this provision, disciplinary information includes court-
martial orders, Records of Proceedings Under Article 15 of the Uniform Code
of Military Justice, and punitive or administrative letters of reprimand,
admonition, or censure.  The restricted fiche is intended to provide an
unbroken historical record of an individual’s service while protecting the
interests of both the Soldier and the Army.  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.

8.  That regulation also states that once placed in the OMPF, a document
becomes a permanent part of that file and will not be removed or moved to
another part of the fiche unless directed by certain agencies, to include
this Board.

DISCUSSION AND CONCLUSIONS:

1.  Careful consideration has been given to the applicant’s service both
prior to and after the nonjudicial punishment action.  The applicant’s
military service, both prior and subsequent to the Article 15 action in
1988 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 nonjudicial punishment 16
years ago, and the intended effect of that punishment has been served.  The
Board has also reviewed and considered the information in the letters of
support that the applicant has provided with his request.  The comments
therein indicate indeed that the applicant was and is an outstanding
Soldier.  None of these factors, however either individually or in sum,
warrant the relief requested.

2.  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 as it is now, in the
restricted fiche of his OMPF.  Therefore, the removal of the record of
nonjudicial punishment from the applicant's OMPF is not warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW __  ___TO  _  ___LB___  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.





                                  ____ Raymond Wagner______
                                            CHAIRPERSON
None of these factors, either individually or in sum, warrant the relief
requested.


                                    INDEX

|CASE ID                 |AR2004105588                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041202                                |
|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.       |126.06                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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