IN THE CASE OF:	  

		BOARD DATE:	        27 JANUARY 2009

		DOCKET NUMBER:  AR20090000382 


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 reconsideration of his request to remove three Records of Proceedings of Nonjudicial Punishment (DA Form 2627) from his Official Military Personnel File (OMPF). 

2.  The applicant states, in effect, that after reviewing the Record of Proceedings in his case dated 5 February 2008, he found that the proceedings contained numerous errors and he believes that his request did not receive a fair and impartial evaluation by the Board.  Accordingly, he is requesting that the three DA Form 2627s filed in his OMPF be expunged or at least transferred to the Restricted section of his OMPF.  Additionally, he requests that the Board proceedings be corrected and placed in the Restricted section as well.

3.  The applicant provides an email explaining the errors he noted in the previous Board proceedings. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070011433, on 5 February 2008.

2.  The applicant's records, though somewhat incomplete, show that the applicant was born on 26 June 1957 and enlisted in the United States Army Reserve (USAR) under the delayed entry program (DEP) on 14 July 1975.  On 2 October 1975, he enlisted in the Regular Army.

3.  On 16 September 1976, nonjudicial punishment (NJP) was imposed against the applicant for failure to obey a lawful order.  His punishment consisted of extra duty for 14 days and he did not appeal the punishment.

4.  On 5 June 1978, while serving in Wertheim, Germany in the pay grade of E-4, NJP was imposed against the applicant for disobeying a lawful command from a superior commissioned officer.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 90 days), a forfeiture of pay and extra duty.  However, the applicant appealed the punishment and the battalion commander set aside all punishment except the extra duty.

5.  On 30 October 1981, the applicant was honorably discharged at Fort Bliss, Texas, due to completion of required service.  He had served 6 years and         29 days of total active service.

6.  On 8 March 1982, he again enlisted in the USAR under the DEP and on 30 March 1982, he enlisted in the Regular Army in the pay grade of E-4.  He was promoted to the pay grade of E-5 on 1 February 1983 and to the pay grade of   E-6 on 1 December 1984.

7.  On 2 July 1990, while serving on recruiting duty in Texas in the pay grade of E-6, NJP was imposed against him for being disrespectful in deportment towards a noncommissioned officer by throwing a pencil on the desk, storming out of the office and refusing to return when ordered to do so.  His punishment consisted of a forfeiture of pay and removal from the recruiting station.  The applicant appealed his punishment and his appeal was denied by the battalion commander on 24 August 1990.   When the applicant was advised of the status of his appeal, he refused to sign the DA Form 2627 acknowledging that he had seen the action on his appeal.  He was subsequently transferred to Fort Bliss, Texas for duty as a Vulcan Crewmember in an air defense artillery unit.

8.  On 20 July 1992, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8 and the Fiscal Year 1992 Enlisted Voluntary Early Transition Program.  He had served 16 Years, 4 months and 20 days of total active service and was paid $51,517.51 in Special Separation Benefits (SSB).



9.  On 21 July 1992, he enlisted in the USAR and was assigned to the USAR Control Group (Reinforcement) and remained there until he was discharged from the USAR on 12 December 1995.

10.  On 4 August 1998, he enlisted in the Arizona Army National Guard in the pay grade of E-6.  He was promoted to the pay grade of E-7 on 16 March 2001 and the pay grade of E-8 on 20 May 2003.

11.  On 1 September 2004, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

12.  A review of the available records fails to show that he applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the records of NJP transferred to the Restricted section of his OMPF while he was on active duty.

13.  A review of the previous Record of Proceedings (AR20070011433) shows that administrative errors were made in the preparation of the case.  The proceedings reflected that the applicant was reduced to the pay grade of E-2 by the NJP that was imposed on 5 June 1978.  However, the punishment was actually reduction to the pay grade of E-3, which was subsequently set aside.  The proceedings also indicate that the applicant was involuntarily discharged on 20 July 1991, when in fact, he was voluntarily discharged on 20 July 1992.  This paragraph and proceedings will serve as the correction to the above administrative errors made in (AR20070011433).  The Record of Proceedings and all associated documents are filed on the Restricted portion of his OMPF in accordance with applicable regulations and therefore the filing of ABCMR Records of Proceedings will not be discussed further in these proceedings.

14.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-16d (4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

15.  Army Regulation 27-10 (Military Justice) prescribes the guidelines for the filing of NJP.  It states, in pertinent part, that the decision to file the original DA Form 2627 in the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627.



16.  Paragraph 3-37 of Army Regulation 27-10 provides the filing determination for the DA Form 2627 and associated documents.  It provides, in pertinent part, that the Restricted Fiche of the OMPF is that portion of the OMPF that contains information not normally viewed by career managers or selection boards. 
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he did not receive a fair and impartial review by the Board of his original request has been noted and found to lack merit.

2.  Despite the fact that there were some minor administrative errors on the original Record of Proceedings, a new review of the applicant's application and records was conducted and it still appears that there is no basis to grant his request for removal or transfer of the documents in question.  The errors made on the original Record of Proceedings had no bearing on the proper filing of the NJPs or the reasons to deny removal of those documents from his OMPF.

3.  It appears that all of the NJPs were imposed in compliance with applicable laws, regulations, and policies by commanders empowered to do so.  The punishments were not disproportionate to the offenses and there is no evidence of any violations of the applicant’s rights.  Accordingly, they are properly filed in his OMPF in accordance with the regulations in effect at the time.

4.  The Board has noted the applicant’s contentions and finds them to be without merit.  He was serving in the pay grade of E-6 at the time he received his last NJP and inasmuch as he is still serving as a noncommissioned officer, the NJP should remain a matter of record.     

5.  While the Board understands the applicant’s concerns, the Army has an interest in maintaining such documents, and the applicant has not shown sufficient reasons why they should not remain a matter of record, even after considering his entire record and the fact that he has been promoted twice since receiving his last NJP.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070011433, dated 5 February 2008.




      _______ _XXX   _______   ___
               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)                                         AR20090000382



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ABCMR Record of Proceedings (cont)                                         AR20090000382



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