RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060011019


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, Eighth United
States Army General Court-Martial Order Number 1, dated 8 March 2002, be
transferred to the restricted fiche of his Official Military Personnel File
(OMPF).

2.  The applicant states, in effect, that the one year requirement has
elapsed and at least one nonacademic evaluation report has been received
since the punishment.

3.  The applicant provides a self-authored statement, dated 24 May 2006;
and copy of Headquarters, Eighth United States Army [APO AP] General Court-
Martial Order Number 1, dated 8 March 2002, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army on 5 November 1998 for a period of
three years.  He is currently serving in the grade of staff sergeant and
assigned to Headquarters and Headquarters Company, 1st Battalion of the
36th Infantry Division, Camp Hit, Iraq.

2.  Headquarters, Eighth United States Army [APO AP] General Court-Martial
Order Number 1, dated 8 March 2002, shows the applicant was convicted of
indecent acts with another, adultery, and failure to obey a lawful general
regulation.  The sentence was adjudged on 18 December 2001 and his sentence
consisted of reduction to the grade of private/pay grade E-2, forfeiture of
$200.00 per month for three months, and 60 days restriction.  On 5 April
2002, the findings and sentence were reviewed by The Judge Advocate General
pursuant to Article 69, Uniform Code of Military Justice, and found to be
correct in law and fact.  This general court-martial order is filed in the
performance section of the applicant's Official Military Personnel File
(OMPF).

3.  The applicant submitted a self-authored statement, dated 24 May 2006.
The applicant essentially stated that the court-martial order has been on
his OMPF for over one year and that the court-martial order is detrimental
to his career progression.  The applicant argues that his records are
scheduled for consideration for promotion to the rank of sergeant first
class and that removing the court-martial order will increase his chances
of being selected.



4.  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.  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 performance section of
the OMPF when there is an approved finding of guilty on at least one
specification.  There are no provisions for automatically transferring
court-martial orders to the restricted portion of the OMPF.

5.  Army Regulation 600-37 (Unfavorable Information) provides filing
instructions for unfavorable information on the OMPF.  Chapter 7 of Army
Regulation 600-37 provides, in pertinent part, the policy for
appealing/petitioning for removal from or transfer of documents in the OMPF
and the policy 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the court-martial currently filed on the
performance section of his OMPF should be removed or transferred to the
restricted section of his OMPF because it has served its intended purpose.

2.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, section 1552, the authority under which acts the Army Board for
Correction of Military Records is not empowered to set aside a conviction.
Rather it is only empowered to change the severity of the sentence imposed
in the court-martial process and then only if clemency is determined to be
appropriate.  Clemency is an act of mercy, or instance of leniency, to
moderate the severity of the punishment imposed.

3.  Army Regulation 600-8-104 provide instructions for filing unfavorable
information in a Soldier's OMPF; however, there are no provisions in that
regulation or Army Regulation 600-37 that indicate a court-martial order
will be removed or transferred a year after the date of conviction.





4.  Evidence shows the general court-martial order has been properly filed
in accordance with the governing regulation and, absent any evidence that
it has or will serve as an injustice, a court-martial order will likely
affect his future promotion potential.  However, that does not alone make
it unjust.  No basis in law or equity exists to move the document to the
restricted fiche portion of his OMPF at this time.

5.  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 this requirement

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JI_____  _KSS____  _GJP____  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 Infante________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060011019                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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