RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040008192


      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             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 all reference to a 28 May 1996 special court-
martial (SPCM) be purged from his files.

2.  The applicant states that the theft of the radio in 1996 was an
aberration.  He has worked hard to overcome this error and that it has
taught him to be a better Soldier.  He states that the court martial is
preventing him from obtaining a higher security clearance and being
promoted.

3.  The applicant provides copies of five Noncommissioned Officer (NCO)
Evaluation Reports (NCOER), nine letters of reference and support, the 1996
Special Court-Martial Order, and a 1997 Good Conduct Medal disqualification
statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he entered active duty on 22 April 1994,
completed training, and was awarded the military occupational specialty
(MOS) 92R (Parachute Rigger).  He is currently serving as a staff sergeant
(SSG) in the position of section chief at the Personnel Parachute Repair
Facility, Ft. Bragg, North Carolina.

2.  Headquarters, XVII Airborne Corps, Special Court-Martial (SPCM) Orders
Number 11, dated 28 May 1996, indicates that, in accordance with his pleas,
he was found guilty of the theft and disposal of a military radio.  It is
noted that the radio had been turned in undamaged and the applicant
voluntarily came forward admitting to having taken the unit.  His sentence
was reduction to pay grade E-1, forfeiture of $583.00 pay per month for 6
months, and 3 months confinement.

3.  The applicant was promoted to sergeant on 1 March 1999.  His NCOERs
since this time have been consistently in the top blocks.

4.  Several letters of support are provided by a number of senior officers
and NCOs who have served with and over the applicant.  They all describe
him as a sincere, dedicated, hard working NCO.  His loyalty, duty, respect,
honesty, integrity and professionalism are described as hallmarks of his
character.  They state that he will continue to be an outstanding asset to
the Army and recommend the removal of the SPCM from his records.  All of
the personnel submitting the letters are aware of the SPCM.

5.  The applicant has been awarded the Army Commendation Medal, three Army
Achievement Medals, the Good Conduct Medal (3rd Award), the Parachutist
Badge, and the Parachute Rigger Badge since the incident.

6.  The statutory authority under which this Board was created (Title 10,
United States Code, section 1552, as amended) precludes any action by this
Board which would disturb the finality of a court-martial conviction.
Title 10 further indicates that a finding of guilty by a court-martial
constitutes a Federal conviction.

7.  Army Regulation 600-37 (Unfavorable Information), chapter 7 -1 sets
forth the policies and procedures whereby a person may seek removal of
unfavorable information from official personnel files.  It states that once
an official document has been properly filed in the OMPF, it is presumed to
be administratively correct and to have been filed pursuant to an objective
decision by competent authority. The burden of proof rests with the
individual concerned to provide evidence of a clear and convincing nature
that the document is untrue or unjust, in whole or in part, thereby
warranting its alteration or removal from the OMPF.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies and mandated operating tasks for the
Military Personnel (MILPER) Information Management/Records Program of the
Military Personnel System.  It states that disciplinary information,
including court-martial orders, is to be filed in the Official Military
Personnel File (OMPF) on the performance (P) portion of his OMPF.  The Army
Board for Correction of Military Records has the authority to transfer a
court-martial order from the P fiche to the restricted (R) portion of his
OMPF "to correct an error or to remove an injustice."

9.  Department of Defense Directive (DOD) Number 7730.46, dated 15 October
1996, established the Defense Incident Based Reporting System (DIBRS).
DIBRS was created to bring the DOD into compliance with the Uniform Federal
Crime Reporting Act of 1988, Victim's Rights and Restitution Acts of 1990
and 1994, and the Brady Handgun Act.  As the DOD central repository for
consolidation and reporting of incidents to the National Incident-Based
Reporting System (NIBRS) and the Federal Bureau of Investigation (FBI), it
standardizes data requirements so that all services and components can
report and share common information.  It establishes the reporting
framework so that the central repository can expect the same information
from all components.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's record supports his contention that the radio incident
was a single act that was a significant deviation from his normal behavior.

2.  The applicant's service, following the SPCM, has been one of notable
accomplishment as noted by his personal awards and the letters of support
provided by numerous officers and NCOs.

3.  Since the applicant will still have to honestly admit to having had a
court-martial conviction every time he reenlists or goes for a position of
high security, it would not be in the best interest of the applicant to
completely purge his records of all reference to the court-martial.

4.  A guilty finding by a court-martial is a Federal conviction.  Incidents
that result in Federal convictions are also recorded in databases over
which the Board has no authority.  These databases, such as those
maintained by the NIBRS and the FBI, are routinely checked when higher
security clearances are requested.  A total lack of a military record of
the offense would most likely create greater complications for the
applicant.

5.  However, leaving the court-martial and related documents in his
permanent file will undo all of the hard work and accomplishments the
applicant has had since the incident.  Therefore, it would be appropriate
to correct the applicant's records by moving the court-martial order and
all related documents to the restricted portion of his records.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_MKP ___  _REB __  _LMB ___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by transferring the court-martial order and all
related documents to the restricted portion of his OMPF.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
completely purging all record of the court-martial from his records.





                                        _Margaret K. Patterson________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008192                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |  . . .                                 |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |123.070                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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