IN THE CASE OF:	  

	BOARD DATE:	  13 May 2008

	DOCKET NUMBER:  AR20080002828 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of the nonjudicial punishment (NJP) that he accepted under the provisions of Article 15, Uniform Code of Military Justice on 
20 September 1994 from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the NJP is unjust because it is hindering his selection for promotion to master sergeant, pay grade E-8.

3.  The applicant provides copies of the NJP and a memorandum from the Department of the Army Suitability Evaluation Board (DASEB), dated 18 October 2000. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a sergeant first class, pay grade E-7.

2.  On 20 September 1994, the applicant, as a sergeant, pay grade E-5, accepted NJP for failure to obey a lawful regulation by transporting a loaded firearm on post.  The applicant indicated that he was afforded the opportunity to consult with counsel and elected not to demand trial by court-martial.  The punishment included reduction to pay grade E-4 (suspended), forfeiture of $644.00 pay per month for 2 months, 45 days of extra duty, and 10 days of restriction. The applicant did not appeal the punishment.

3.  In a memorandum dated 18 October 2000, the DASEB considered the applicant's request to transfer the subject NJP from the Performance Section to the Restricted Section of his OMPF.  It determined that the NJP had served its intended purpose and approved the requested transfer.  It further stated that this transfer was not to be considered as retroactive and, therefore, did not constitute grounds for referral to a Standby Advisory Board for a previous non-selection [for promotion].  

4.  Army Regulation 27-10 also provides, in pertinent part, that in regards to NJP, the Soldier will be advised of his or her right to consult with counsel and the location of counsel.  For the purpose of NJP, counsel means a judge advocate, a Department of the Army civilian attorney, or an officer who is a member of the bar of a Federal court or of the highest court of a State.  In regards to civilian counsel related to trial by courts-martial, it provides that the accused has the right to be represented in his or her defense before a general or special court-martial or at an investigation under Article 32, UCMJ, by civilian counsel, if provided by the accused at no expense to the government.

5. Army Regulation 600-8-104 (Military Personnel Information Management/Records) provides, in pertinent part, that all personnel information recorded under the authority of this regulation is the property of the United States Government.  Once recorded, it will not be removed except as provided by law or this regulation. Types of authorized military personnel files are the Official Military Personnel File (OMPF), Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), and the Classified Personnel Record (CPR). Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another section of the OMPF unless directed by one or more of the following: (1) The Army Board for Correction of Military Records (ABCMR); (2) The Department of the Army Suitability Evaluation Board (DASEB); (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, Human Resources Command; (5) The OMPF custodian when documents have been improperly filed; (6) Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, Human Resources Command, St. Louis, Missouri ; (8) Chief, Appeals Branch, National Guard Personnel Center.   Documents designated for transfer from the performance or service section of the OMPF will be put on the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted section documents mistakenly filed on the performance or service section to the restricted section.  Unless approved by the Deputy Chief of Staff, Personnel, or by the Human Resources Command Promotions Branch, this action does not justify standby or special selection board consideration. 
DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the NJP was properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.

2.  The evidence also suggests that he was afforded due process, in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.

3.  The applicant accepted NJP in lieu of demanding trial by court-martial and furthermore, did not appeal the punishment to a higher authority.

4.  The DASEB determined that the NJP had served its intended purpose and approved the applicant's request to move the NJP to the restricted section of his OMPF.

5.  The applicant has not provided any substantiating evidence showing that the subject NJP was unjust or that he did not commit the offense for which punished.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  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.




       _    ___X____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080002828



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ABCMR Record of Proceedings (cont)                                         AR20080002828



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