BOARD DATE:	25 January 2011

		DOCKET NUMBER:  AR20100018139 


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 the removal of the 23 December 2003 record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), from his Official Military Personnel File (OMPF).  

2.  The applicant states, in effect, that he was falsely accused and not given a chance to defend himself.  He was too afraid to take the matter to a court-martial.

3.  The applicant provides a copy of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a 
substantive review of this case and, only to the extent relief, if any, is granted, 
has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Tennessee National Guard on 29 May 1998.  He completed training and was awarded military occupational specialty (MOS) 95B (Military Policeman).  

3.  On 23 February 2003, his unit was ordered to report to Fort Campbell, KY for a period not to exceed 24 months in support of contingency operations for Operation Enduring Freedom.

4.  On 23 December 2003, the applicant accepted NJP for violation of Article 134 (General Article) by willfully and wrongfully exposing his penis in an indecent manner to public view.  He was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.  He accepted NJP in lieu of demanding a trial by court-martial.  His punishment was a reduction to 
E-4, fine of 1/2 of 1 month's pay, 30 days of extra duty, and restriction (suspended for 6 months).  The applicant's appeal of the punishment was denied.  The commander directed that the DA Form 2627 be filed in the performance section of the applicant's OMPF.

5.  On 19 February 2004, the applicant was released from active duty.  The highest rank he attained while serving on active duty was sergeant/E-5.  

6.  Army Regulation 27-10 (Military Justice) prescribes the guidelines for the filing of NJP actions.  It states that the decision to file the original DA Form 2627 on the performance or restricted section of 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 of the DA Form 2627.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides 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 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 a section or moved to another part of the OPMF unless directed by one or more of the following:

* the ABCMR
* the Department of the Army Suitability Evaluation Board (DASEB)
* Army Appeals Board
* the Chief, Appeals and Corrections Branch, Human Resources Command
* the OMPF custodian when documents have been improperly filed
* the Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation
* the Chief, Appeals Branch, Human Resources Command, St. Louis, MO
* the Chief, Appeals Branch, National Guard Personnel Center.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the NJP he received should be removed from his OMPF.

2.  The evidence in this case shows 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.

3.  The evidence also shows 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 the NJP.  He chose to accept the NJP in lieu of demanding trial by court-martial.  His appeal of the punishment was denied. 

4.  The imposing commander directed that the NJP be filed in the performance section of his OMPF.  There is no evidence of error or injustice.  

5.  The applicant carries the burden of proof to show that the NJP was in error or unjust.  Hr provided no evidence to support his claims. Since the NJP is facially valid, the Boards may presume administrative regularity. 

5.  In view of the above, there is no basis for granting the applicant's requested relief.

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)                                         AR20100016512



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ABCMR Record of Proceedings (cont)                                         AR20100018139



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