IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110002465 


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 record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).

2.  The applicant states that a week after the NJP was imposed a new commanding officer decided that there was no evidence to show whether the marijuana belonged to the applicant or his roommate.  He did not have to perform the imposed punishment and thinks the record of NJP should be expunged.

3.  The applicant provides no additional documentation to substantiate his request.

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 Regular Army on 30 July 1971.  He completed basic and advanced individual training as a helicopter repairman but then voluntarily underwent retraining as an engineering structure specialist in military occupational specialty (MOS) 51B. 

3.  He progressed normally and was advanced to pay grade E-4 on 7 July 1972.  

4.  On 3 December 1973, while still stationed at Fort Carson, Colorado he accepted NJP for possessing 1 ounce, more or less, of marijuana.  He did not demand trial by court-martial or submit any matters in mitigation, extenuation, or defense.  The punishment imposed, on 7 December 1973, consisted of reduction to private first class/pay grade E-3 and forfeiture of $70 per month for 1 month, both suspended until 7 April 1973, and extra duty for 14 days.  He did not appeal the punishment. 

5.  The applicant completed his enlistment without further incident and was separated with an honorable characterization of service and transferred to the U.S. Army Reserve.

6.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides 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 before courts-martial and may consider any matter, including unsworn statements, the commander reasonably believed to be relevant to the case.  However, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that a week after the NJP was imposed a new commanding officer decided that there was no evidence to show whether the marijuana belonged to the applicant or his roommate.  He did not have to perform the imposed punishment and thinks the record of NJP should be expunged.

2.  The applicant offered no evidence to support his claim.

3.  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.  

4.  Prior to accepting NJP the applicant was offered the right to consult with counsel who was obliged to advise him of his rights, including his right to demand trial by court-martial where, with the assistance of counsel and the safeguards of the rules of evidence, he could have asserted that defense.

5.  While NJP is not synonymous with either a plea of guilty or a plea bargain arrangement these procedures do have many similarities, including the fact that each is frequently used to deal with an occurrence by the adjudication of a lesser included offense.  Similar arrangements are used in civilian justice systems to help manage the demands on the systems.  In neither the civilian nor the military context are such procedures necessarily interpreted as providing a definitive description of what actually occurred.

6.  In view of the foregoing 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)                                         AR20110002465





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002465



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1