RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 MAY 2005
      DOCKET NUMBER:  AR20040006365


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Diane Armstrong               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the record of his special court-
martial be expunged from his Official Military Personnel Record (OMPF) or,
in the alternative, be transferred to the restricted portion of his OMPF.

2.  The applicant states that the “document hinders [him] from being
promoted.”  In a memorandum included with his request he indicated that he
has learned from his actions and that his commitment to serve and
dedication to Soldiering has been demonstrated though outstanding annual
evaluations since and his performance during the time of the incident.

3.  He notes that in 1998 he appeared before a general officer “to override
a bar for reenlistment” and in 2001 he appeared before another general
officer “for the QMP [Qualitative Management Program]” and states that both
general officers agreed that he should be allowed to continue his Army
career.  He states, however, that he is “repeatedly punished for this
blemish in [his] record.”

4.  The applicant provides evidence that he initially attempted to have the
document moved to his restricted fiche by the Department of the Army
Suitability Evaluation Board.  He also submits a copy of an October 2003
performance evaluation report.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant entered
active duty in 1991 and has served continuously.  He was promoted to pay
grade E-5 in May 1996.

2.  In December 1997, while stationed in Korea, the applicant was convicted
by a special court-martial of “assault consummated by a battery” after
“grabbing and choking” a woman sergeant “with his hand around her throat
until she was unconscious” on 10 August 1997.  His sentence included a
reprimand, forfeiture of $200.00 pay per month for 4 months, and
restriction to the limits of the company area and installation less
drinking establishments where alcohol was sold for open public consumption
for 2 months.  The sentence was approved and the reprimand was incorporated
into the 11 March 1998 special court-martial order.  That order is filed in
the applicant’s OMPF.

3.  Although the applicant’s rater and senior rater rendered a successful
and complimentary evaluation report on the applicant in March 1998, the
applicant’s reviewer submitted a statement, which is filed in the
applicant’s OMPF, which noted that he did not agree with the evaluation.
He specifically noted that while the applicant’s work performance had
always been exemplary his off duty behavior failed to meet the standards
that he expected of a noncommissioned officer.

4.  In July 1998 the applicant’s commander submitted a request to obtain a
waiver of court-martial action in order to permit the applicant to
reenlist.  The request for waiver was approved in August 1998 and in
November 1998 the applicant executed a reenlistment contract.  The
applicant was also promoted to pay grade E-6 in November 1998.

5.  In the fall of 2000 the applicant was notified that he had been
identified by the calendar year 2000 sergeant first class promotion board
for a Department of the Army level bar to reenlistment under the Army’s
Qualitative Management Program.  The applicant’s court-martial action was
cited as the primary reason for his QMP selection.  The applicant
successfully appealed the QMP action and those documents are appropriately
filed on his restricted fiche.

6.  Subsequent to the applicant’s court-martial he continued to receive
complimentary performance evaluation reports and was awarded several Army
Achievement Medals and an Army Good Conduct Medal.

7.  In August 2001 the applicant executed an indefinite reenlistment
contract.

8.  Army Regulation 600-8-104 states that court-martial orders will be
filed on the “P” (performance) fiche in an individual’s OMPF when there is
an approved finding of guilty on at lest one specification.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant was successful in obtaining a waiver of the
court-martial action in order to reenlist and in appealing his QMP action,
or that he has continued to progress as a Soldier, received several
personal decorations, as well as complimentary performance evaluation
reports, is testament that in spite of the court-martial action he has
managed to continue to be an asset to the Army.  The mere passage of time,
one’s ability to overcome such an incident, and subsequent accomplishments
are not a basis to expunge a properly executed and properly filed court-
martial action.

2.  Removing the court-martial order, or transferring it to the restricted
fiche, would render his record less than truthful and would, in effect,
place him on a level playing field with soldiers whose careers have not
been marred by such an incident of misconduct.  Retention of the record
protects the applicant and the Army's interest by ensuring that a complete
record of the facts are maintained.

3.  The court-martial order is properly filed and as such no error or
injustice exists.  The actions by the Army in this case were proper, and
there is no doubt to be resolved in favor of the applicant.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SP ___  ___PM __  ___DA __  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.





                                  ____ Shirley L. Powell ______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006365                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050503                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |134.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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