IN THE CASE OF: BOARD DATE: 4 January 2011 DOCKET NUMBER: AR20100017313 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, in effect, that his general court-martial be removed from his Official Military Personnel File (OMPF). 2. He states the U.S. Army Court of Criminal Appeals set aside the finding of guilty of the charge of wrongful distribution of marijuana on 16 March 2000 and the charges were also dismissed. 3. He provides General Court-Martial Order Number 91, dated 2 June 2000; a memorandum for the General Court-Martial Convening Authority, dated 2 June 2000; a memorandum for the Commander, U.S. Army Armor Center and Fort Knox, dated 5 April 2000; and DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application. 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 16 July 1993. 3. General Court Martial Order Number 45, dated 17 November 1997, shows he was convicted on 30 July 1997, contrary to his pleas, of wrongful distribution of marijuana on divers occasions between on or about 1 August 1996 and on or about 30 September 1996 and wrongful use of marijuana on divers occasions between on or about 1 August 1996 and on or about 30 September 1996. He was sentenced to reduction to private, E-1, forfeiture of all pay and allowances, confinement for one year, and a bad conduct discharge. His sentence was approved on 17 November 1997 and, except for the bad conduct discharge, was executed. 4. A copy of General Court-Martial Order Number 45 was filed in the restricted section of his OMPF. 5. General Court-Martial Order Number 91, dated 2 June 2000, shows the finding of guilty of Specification 1 of the Charge was set aside and Specification 1 of the Charge was dismissed. The remaining finding of guilty was affirmed. The sentence was set aside on 16 March 2000 by the U.S. Army Court of Criminal Appeals. The convening authority determined that a rehearing was impractical. This general court-martial order was filed in the performance section of his OMPF. 6. On 2 June 2000, the remaining finding of guilty and a sentence of no punishment was approved. All rights, privileges, and property of which he had been deprived by virtue of the execution of the sentence adjudged at the former trial on 30 July 1997 were restored. 7. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) states that once placed in the OMPF, documents become a permanent part of that file and will not be removed from the OMPF or moved to another part of the OMPF unless directed by one of several agencies, one of which is this Board. Table 2-1 of the regulations provides that a court-martial order, when there is an approved finding of guilty on at least one specification, will be filed in the performance portion in the commendatory and disciplinary section. DISCUSSION AND CONCLUSIONS: 1. The applicant was convicted by a general court-martial of wrongful distribution of marijuana and wrongful use of marijuana. He was sentenced to reduction to private, E-1, forfeiture of all pay and allowances, confinement for one year, and a bad conduct discharge. The U.S. Army Court of Criminal Appeals set aside the charge of wrongful distribution but affirmed the conviction of possession of marijuana. The applicant’s sentence was set aside. The convening authority found that a rehearing was impractical and approved a sentence of “no punishment,” which the U.S. Army Court of Criminal Appeals affirmed. 2. General Court-Martial Order Number 45 was filed in the restricted section of his OMPF. However, because there was still one approved finding of guilty, it should have been filed in the performance portion of his OMPF. Nevertheless, this Board will not make his records worse by moving it from the restricted section to the performance section of his OMPF. 3. He has established no basis for removing the general court-martial order from the restricted section of his OMPF. 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) AR20100017313 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100017313 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1