RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 November 2005
      DOCKET NUMBER:   AR20050007674


      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. Yvonne Foskey                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms, Delia R. Trimble              |     |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 Headquarters, United States
Army Communications Electronics Command and Fort Monmouth, Fort Monmouth,
New Jersey General Court-Martial (GCM) Orders Number (#) 1, dated
22 November 2002 be removed from, or transferred to the restricted portion
(R-Fiche) of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that during the period 8 November 1998
through 8 August 2001, he was assigned as the Property Book Officer (PBO)
and noncommissioned officer in charge (NCOIC) of the Logistics Division;
however, he did not have the authority to approve or review purchases made
using the Government credit card, International Merchant Purchase
Authorization Card-(IMPAC).  He claims his supervisor retained that
authority and remained responsible for this function.  He also states that
his supervisor tasked another Soldier with ordering all non-medical
supplies for the health clinic, and that Soldier, without his knowledge,
was unlawfully using her Government IMPAC for personal use.

3.  The applicant also claims that after being questioned by the Logistics
(S-4) Section at West Point, New York regarding the purchases made by the
Soldier at Home Depot, he questioned the Soldier.  She claimed the charges
were made for Facilities Management.  He then questioned the validity of
her claim and contacted the store where the purchases were made.  He was
informed by the store manager that the charges were for gift cards.  The
applicant states that he then reviewed other IMPAC statements and
discovered that there was $7,000.00 worth of unauthorized charges made.  He
further states, that after discovering the amount of the unauthorized
charges made by the Soldier on the IMPAC, he immediately informed his
supervisor and the company commander of his findings.  At this time, the
incident was reported to the Criminal Investigation Division (CID).

4.  The applicant provides the following documents in support of his
application:  Self-Authored Letter, dated 12 May 2005; IMPAC Statement,
dated 23 April 2001; GCM Order Number 1, Issued by Headquarters, United
States Army Communications-Electronics Command and Fort Monmouth, Fort
Monmouth, New Jersey, dated 22 November 2002; Sworn Statement
(Applicant’s), dated
2 July 2001; Department of Army Result of Trial, dated 5 December 2001;
Petition for Clemency, dated 6 November 2002; Supervisor Memorandum of
Support, dated 4 March 2003; and NCOIC Memorandum of Support, dated
1 March 2003.
CONSIDERATION OF EVIDENCE:

1. The applicant’s record shows he is currently serving on active duty in
      Korea, in
the rank of staff sergeant (SSG).

2.  The applicant’s record contains a copy of Headquarters, United States
      Army
Communications Electronics Command and Fort Monmouth, Fort Monmouth,
New Jersey General Court-Martial Orders Number (#) 1, dated 22 November
2002.  These orders confirm the applicant was found guilty of one
      specification of
violating Article 92 of the Uniform Code of Military Justice (UCMJ),
      dereliction of
duty, by willfully failing to ensure a subordinate only used their IMPAC
      credit card
for authorized purchases.

3.  The applicant provides supporting memoranda from his previous
Noncommissioned Officer Evaluation Report (NCOER) rater and from the
supervisor and the NCOIC of the Pharmacy Service Clinic at Fort Monmouth,
New Jersey at the time of the incident.  Both officials gave the applicant
their highest recommendation and support.  They both confirm the applicant
was not the approval or reviewing authority for purchases made by the
Logistic Division during the time of the misuse of the IMPAC card, and that
in fact, it was his supervisor who was the approving authority/billing
official.

4.  Army Regulation 600-8-104 (Military Personnel Information Management
/Records) prescribes the policies and mandates operating tasks for the
Military Personnel (MILPER) Information Management/Records Program of the
Military Personnel System.  Chapter 2 contains guidance on the OMPF.  Table
2-1 outlines the composition of the OMPF.  It states, in pertinent part,
that
court-martial orders will be filed in the P-Fiche of the OMPF when there is
an approved finding of guilty on at least one specification.

5.  Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures on the authorization for placement of unfavorable
information about Army members in individual official personnel files.  It
also contains the policy for appealing/petitioning for removal from or
transfer of documents in the OMPF.  It provides provisions for
removing/transferring letters of reprimand, admonition, censure, and
Article 15s.  However, there are no provisions provided for the removal or
transfer of a court-martial order from the performance portion
(P-Fiche) to the R-Fiche of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to remove the GCM orders in question from his
OMPF, or to transfer them to the R-Fiche of his OMPF, and the supporting
documents he submitted were carefully considered.  Although the regulations
governing the composition of the OMPF and the removal or transfer of
unfavorable information provide no provisions that allow for removal of or
transfer of court-martial orders in the OMPF, there are equity
considerations in this case that should be addressed.

2.  The evidence of record confirms that the applicant was tried on five
charges containing ten specifications, but was convicted only of failing to
supervise a subordinate who had abused the office IMPAC (credit card).

3.  The evidence of record also includes a statement from the applicant’s
supervisor, a Department of the Army (DA) civilian, who confirms he, and
not the applicant, was the approving authority and billing official
responsible for the oversight of IMPAC care purchases.  He further
indicated that the applicant was responsible for ensuring the Soldier in
question met military requirements, but the applicant had no authority or
duty to approve or even review the Soldier’s purchases on the IMPAC card.
The DA civilian further confirms that the applicant was responsible for the
internal investigation of the Soldier’s IMPAC purchases that led to the CID
investigation that brought to light the Soldier’s IMPAC card abuses, and
resulted in her court-martial conviction.

4.  The record further shows the applicant’s court-martial conviction was
based on his failure to supervise a Soldier in the execution of duties he
was not authorized to review, and as a result he sustained a Federal
conviction.  To jeopardize a previously unblemished and still promising
career by allowing these records to remain in the performance portion (P-
Fiche) of his OMPF would be grossly in excess of the crime.  Therefore, it
would be appropriate and serve the interest of equity to transfer the court-
martial orders and related documents to the restricted portion (R-Fiche) of
his OMPF at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___SK __  ___DJA  _  __DRT__  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 orders in question
and all related documents to the R-Fiche 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
removing the court-martial orders and related documents from the OMPF.




            ____Stanley Kelley______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050010350                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005-11-08                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |Active Duty                             |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |Grant - Partial                         |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |126.0400.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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