RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 NOVEMBER 2005
      DOCKET NUMBER:  AR20050004579


      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. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 1994 record of non-judicial punishment
under Article 15 of the Uniform Code of Military Justice (UCMJ) be expunged
from the restricted portion of his OMPF (Official Military Personnel File).

2.  The applicant states the nonjudicial punishment (NJP) has served its
purpose and that since the punishment was imposed he has successfully
served as a Senior Personnel Sergeant and is currently serving as the
Executive Administrative Noncommissioned Officer for the Fort Benning,
Georgia Command Sergeant Major.  He states he previously requested to have
the form removed from his records but it was only transferred to his
restricted fiche, which has put him at a disadvantage with his peers.  He
states he has been unable to compete with his peers when his records have
gone before promotion selection boards.

3.  The applicant provides various documents from his OMPF, including
copies of awards and decorations, a completion certificate for the Defense
Institute of Security Assistance Management Course, five recent performance
evaluation reports, and the document from the Department of the Army
Suitability Evaluation Board which transferred the NJP to his restricted
fiche.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant entered active
duty in 1988 and has served on continuous active duty.

2.  In October 1994, while serving in pay grade E-5 and assigned to a
Special Forces unit in Germany, he was punished under Article 15 of the
UCMJ for operating a motor vehicle while drunk on 27 August 1994.  His
punishment included reduction to pay grade E-4, which was suspended for 6
months, forfeiture of $500.00 per month for 2 months, 15 days of
restriction and 45 days of extra duty.  He did not appeal the punishment
and the NJP was directed to be filed in his performance fiche.

3.  In September 1995 the applicant was promoted to pay grade E-6.

4.  In August 1997 the applicant petitioned the Department of the Army
Suitability Evaluation Board to have the 1994 NJP removed from his OMPF.
He noted that his performance and behavior since the nonjudicial punishment
had been no less than outstanding and that he was setting the standard for
others to emulate.  He argued the retention of the NJP in his record was
restricting his efforts to achieve goals he had set for himself.

5.  In October 1997 the applicant was informed that the Department of the
Army Suitability Evaluation Board (DASEB) had voted to give partial relief
and transfer the record of nonjudicial punishment to his the restricted
portion of his OMPF.  He was also informed that total removal of the record
was not within the purview of the DASEB but he could appeal to this Board
if he wished to pursue removal of the record.

6.  The applicant initiated his petition to this Board in March 2005.

7.  Since receipt of the NJP the applicant has consistently received
excellent performance evaluation reports.  His raters have, with two
exceptions when he was rated as fully capable, consistently indicated that
he was among the best in overall potential for promotion.  His senior
raters have consistently placed him in the first or second block for
overall performance and potential.

8.  He has also received several decorations, including three awards of the
Army Commendation Medal and a Joint Service Commendation Medal, completed
various military training courses, and been awarded his fifth award of the
Army Good Conduct Medal since the NJP.

9.  Army Regulation 27-10 provides policy for the administration of
military justice.  It notes 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 who 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 provides that the officer imposing NJP determines whether
the report of NJP is to be filed on the individual’s restricted or
performance fiche.

10.  Army Regulations, which establish the responsibilities, policies, and
procedures for maintaining and controlling the OMPF, state that the
restricted fiche is the OMPF section for historical data that may normally
be improper for viewing by selection boards or career managers.  The
restricted fiche ensures that an unbroken, historical record of a member’s
service, conduct, duty performance, evaluation periods, and corrections to
other parts of the OMPF is maintained.  It is intended to protect the
interest of the member and the Army.
DISCUSSION AND CONCLUSIONS:

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

2.  The fact that the applicant has continued to excel in his military
career is testament that the purpose of the NJP accomplished the goal for
which it was established; that the NJP is a tool available to commanders to
correct, educate and reform offenders.  This fact was recognized by the
DASEB when they moved the NJP from the applicant's performance fiche to his
restricted fiche.

3.  Although the applicant may perceive that retention of the record of NJP
on his restricted fiche might somehow be prejudicial to his career, there
is no basis to support that perception.  Rather, retention of the record
protects the applicant and the Army’s interest by ensuring that a complete
record of the facts are maintained.

4.  The record of NJP is properly filed and as such no error or injustice
exists.  The actions by the Army in this case were proper, and there is no
doubt to be resolved in favor of the applicant.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JA____  __TO   __  __CK ___  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.





                                  ____James Anderholm_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004579                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051101                                |
|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.       |134.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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