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ARMY | BCMR | CY2005 | 20050008033C070206
Original file (20050008033C070206.doc) Auto-classification: Denied



                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 October 2005
      DOCKET NUMBER:  AR20050008033


      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. Eric S. Moore                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 a 30 November 2001 court-
martial order showing he was acquitted of all charges be expunged from the
restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he was unaware that the document
located in his restricted file could be seen by anyone.

3.  The applicant provides a copy of the court-martial order; a 9 November
2000 promotion order to sergeant; a Statement of Entitlement to Selective
Reenlistment Bonus; and a Request for Reenlistment or Extension in the
Regular Army.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 2 April 1996 and was promoted to
staff sergeant/pay grade E-6 on 1 August 2003.

2.  On 2 November 2001, the applicant was found not guilty at Fort Sill,
Oklahoma on sex related charges.

3.  The court-martial order is filed on the restricted portion of the
applicant's OMPF.

4.  Army Regulation 600-8-104 (Military Personnel Information
Management/Records) states that court-martial orders are to be filed on the
restricted fiche if all approved findings are not guilty.  Additionally, in
cases with guilty findings, if all charges and specifications are later
dismissed or if all findings of guilty have been reversed in a supplemental
order, all related orders are removed from the performance fiche and
transferred to the restricted fiche.

5.  Army Regulation 600-8-104 also states that the restricted portion of
the OMPF is for historical data that may normally be improper for viewing
by selection boards or career managers.  The release of information on this
fiche is controlled.  Documents on this fiche are those that must be
permanently kept to maintain an unbroken, historical record of a member's
service, conduct, duty performance, and evaluation periods and are intended
to protect the interest of the Soldier and the Army.  Once placed in the
OMPF, the document becomes a permanent part of that file.


DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Although the applicant may perceive that retention of the order on his
restricted fiche might somehow be prejudicial to his career, there is no
evidence to support such a conclusion.  Rather, retention of the order
protects the applicant and the Army's interest by ensuring that a complete
record of the facts is maintained.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.  Therefore, there is
no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jrm __  ___jbg __  ___jtm __  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.



                                  _____John T. Meixell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008033                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR CHUN                                 |
|ISSUES         1.       |126.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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