RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20070000559 


	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. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Marla J. N. Troup

Chairperson

Mr. John G. Heck

Member

Mr. Donald L. Lewy

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 record of nonjudicial punishment (NJP) be removed from the Performance Section of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the record was just and that he used poor judgment.  He received NJP for going back into his office after duty hours when he had been drinking.  He further states that he regrets the incident and will not do something like this again as it sets a bad example for his Soldiers.  He says that he has learned from his mistake and believes he has recovered and will lead from the front once again.

3.  The applicant provides a copy of a Memorandum for Record (MFR) from his former senior rater.  It addresses the applicant's performance of duty and potential for promotion, and specifically states that he has consistently led from the front and exemplified the admirable traits of a good mentor and trainer to junior Soldiers.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application the applicant was on active duty as a staff sergeant, pay grade E6, with the 10th Soldier Support Battalion, Fort Drum, New York.

2.  On 20 June 2005, the applicant was counseled for being drunk on duty on 
17 June 2005.   

3.  On 21 July 2005, the battalion commander informed the applicant that he was considering NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  

4.  On 26 July 2005, the applicant indicated that he had consulted with counsel and waived his right to demand a trial by court-martial.  He requested a closed hearing, declined to have another person speak in his behalf, and he indicated that matters in defense, mitigation and/or extenuation would be presented.  The DA Form 2627 (Record of NJP Proceedings) does not indicate what, if any, information was presented at the proceedings.



5.  On 26 July 2005, the applicant received NJP under the provisions of the Uniform Code of Military Justice (UMJ) for violation of Article 92, for being drunk on duty.  The punishment included reduction to sergeant, pay grade E5 (suspended) and a forfeiture of $500.00 pay per month for 2 months.  The applicant did not appeal the punishment.  The battalion commander directed filing of the NJP in the Restricted Section of the applicant's OMPF.  

6.  The applicant's records show that he had previously received an NJP and it was filed in the Restricted Section of his OMPF. 

7.  Therefore, the filing location for the NJP issued on 26 July 2005 was changed to the Performance Section of the applicant’s OMPF in accordance with Army Regulation 27-10 (Military Justice), paragraph 3-6, which provides, in part, that if a record of nonjudicial punishment has been designated for filing in a Soldier’s Restricted Section, the Soldier’s OMPF will be reviewed to determine if the Restricted Section contains a previous record of nonjudicial punishment.  In those cases in which a previous DA Form 2627 (Record of Proceedings under Article 15, UCMJ), has not been wholly set aside has been filed in the Restricted Section and in which prior to that punishment, the Soldier was in the grade of SGT or higher, the present DA Form 2627 will be filed in the Performance Section.  The filing should be recorded on the present DA Form 2627 in block 11.  The Soldier concerned and the imposing commander will be informed of the filing of the DA Form 2627 in the Performance Section of the OMPF.

8.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 states that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive 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 and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

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.  The NJP was properly filed in the Performance Section of the applicant's OMPF.  

2.  There does not appear to be any basis for removing the record of NJP from the Performance Section.  The applicant has not provided any compelling evidence or argument to show that there are equitable reasons for its transfer to the restricted portion of his OMPF. 

3.   The applicant's subsequent good service, as evidenced by the supporting MFR, is not sufficiently mitigating to support the removal of the NJP from his Performance Fiche.

4.  In view of the foregoing, the applicant's request should not be granted.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MJNT _  __JGH__  __DLL___  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.





__    Marla J. N. Troup_______
          CHAIRPERSON


INDEX

CASE ID
AR20070000559
SUFFIX

RECON
 
DATE BOARDED
20070221 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
126.0500
2.

3.

4.

5.

6.