IN THE CASE OF:	  

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20150009487 


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 a DD Form 2329 (Record of Trial by Summary Court-Martial), dated October 2004, from his Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  There is a summary court-martial in his OMPF and promotion board file.

	b.  It has been over 10 years since this proceeding took place.  In 2004, he was accused of simple assault which he denied.  He was found guilty by an individual who held a lot of animosity against him for a reason unknown to him.  He appealed the findings based on the fact that this individual asked to preside over the proceedings when he found out it was the applicant, the individual didn't listen to a word the applicant said or any of his witnesses, and the individual already had his mind made up as to what he was going to do.

	c.  During his appeal he was told the summary court-martial would not be placed in his records and would be thrown out.  Ten years had passed and then the summary court-martial appeared in his records on 9 June 2014.

	d.  He fears the summary court-martial will prevent him from advancing to the next step in his career, a career he has been working so hard at and a mistake so long ago could derail.

3.  The applicant provides a DD Form 2329, dated 30 October 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the rank of staff sergeant/E-6 in the Regular Army.

2.  A DD Form 2329 shows the applicant, then a sergeant/E-5, was convicted on 30 October 2004 contrary to his pleas by a summary court-martial of failing to obey a lawful order in Iraq by being on the pad of the 15th Forward Support Battalion after the prescribed hours and assaulting a female private first class by cutting her on the face with his fingernails.  He was sentenced to reduction to specialist/E-4 and restriction for 2 months.  On 30 October 2004, the convening authority approved the sentence but suspended the reduction in rank for 3 months.

3.  A review of the performance folder of his OMPF in the interactive Personnel Electronic Records Management System revealed a copy of the DD Form 2329 in question.

4.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  It states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.  The regulation provides that a DD Form 2329 will be filed in the performance folder of the OMPF where there is an approved finding of guilty on at least one specification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, there is no evidence the DD Form 2329 was improperly imposed.

2.  Since the DD Form 2329 is properly filed in his military records in accordance with the governing regulation, and it would not be equitable to place the applicant on the same competitive footing as Soldiers who have no blemish on their records, there is no basis for granting the applicant’s request to remove the DD Form 2329 from 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 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)                                         AR20150009487



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ABCMR Record of Proceedings (cont)                                         AR20150009487



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