RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 October 2005
DOCKET NUMBER: AR20050011732
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. Lisa O. Guion | |Analyst |
The following members, a quorum, were present:
| |Mr. Melvin H. Meyer | |Chairperson |
| |Mr. Allen L. Raub | |Member |
| |Mr. Linda D. Simmons | |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 General Court Martial (GCM)
Order be transferred from the performance portion (P-Fiche) to the
restricted portion
(R-Fiche) of his Official Military Personnel File (OMPF).
2. The applicant states, in effect, that he has honorably served in the
Army for seven years, and is about to be promoted to staff sergeant (SSG).
He further states that he would like to be promoted to sergeant first class
(SFC) and would have a better chance to make this grade if the court-
martial order in question were transferred to the R-Fiche. He finally
states he was found not guilty of the charges in question.
3. The applicant provides a letter from his squad leader in support of his
application.
CONSIDERATION OF EVIDENCE:
1. The military records show the applicant enlisted in the Regular Army
and entered active duty on 12 August 1998. He completed basic training at
Fort Sill, Oklahoma and advanced individual training (AIT) at Fort Leonard
Wood, Missouri. Upon completion of AIT he was awarded military
occupational specialty (MOS) 88M (Motor Transport Operator).
2. The applicant’s record contains a copy of Headquarters, Fort Carson,
Colorado GCM Order Number (#) 49, dated 29 November 2000. This order shows
a GCM found the applicant not guilty of violating Article 120 (Rape) and
Article 125 (forcible sodomy) of the Uniform Code of Military Justice
(UCMJ) on
2 June 2000. However, the GCM did find him guilty of violating Article 125
by committing consensual sodomy. The resultant sentence included a
reduction to the rank of private/E-1 (PV1), forfeiture of $500.00 per month
for eight months, and two months restriction. The convening authority
approved only that portion of the sentence that provided for reduction to
the rank of PV1, forfeiture of $500.00 per month for five months and 41
days of restriction.
3. The applicant provides a letter of support from his current squad
leader. This supervisor supports transferring the GCM order in question to
the R-Fiche of the applicant’s OMPF to allow for the applicant’s
advancement in the Army.
4. Army Regulation 600-8-104 (Military Personnel Information
Management/Records) prescribes the policies governing the OMPF. Table 2-1
of this regulation provides, in pertinent part, that court martial orders
will be filed in the performance portion (P-Fiche) of the OMPF when there
is an approved finding of guilty on at least one specification. If all
approved findings are not guilty, the order will be filed in the R-Fiche
portion of the OMPF. If all charges and specifications are later dismissed
or if all findings of guilty have been reversed in a supplemental order,
all related documents will be removed from the P-Fiche and transferred to
the R-Fiche.
DISCUSSION AND CONCLUSIONS:
The applicant's contention that GCM Order #49 should be transferred to the
R-Fiche of his OMPF has been carefully considered. However, by regulation,
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. The GCM order
in question is filed in the P-Fiche of his OMPF in accordance with the
applicable regulation. Thus, absent any evidence showing the filing of the
document in question was in error, there is an insufficient evidentiary
basis to support granting the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___MHM_ __ALR __ __LDS__ 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.
____Melvin H. Meyer____
CHAIRPERSON
INDEX
|CASE ID |AR20050011732 |
|SUFFIX | |
|RECON |NA |
|DATE BOARDED |2005/10/27 |
|TYPE OF DISCHARGE |NA |
|DATE OF DISCHARGE |NA |
|DISCHARGE AUTHORITY |NA |
|DISCHARGE REASON |NA |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Chun |
|ISSUES 1. |123.0700 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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