RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060011052 


	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. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Hubert Fry

Chairperson

Mr. William Crain

Member

Mr. Dale DeBruler

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 that General Court-Martial Order Number 19, dated 
22 December 1993, be expunged from his military records.

2.  The applicant states, in effect, that his record is unjust because it does not reflect his true character as described by the character reference letters submitted by his immediate chain of command.    

3.  In a Memorandum for Record, dated 10 June 2006, the applicant states, in effect, that the disciplinary action took place on his initial tour of duty when he was 19 years old.  He states that although he was initially charged with a sexual offense (rape), he was found innocent of the charge, and the findings were determined to be that of a much lesser charge (indecent acts with a minor).  He points out that since the incident he has proven to be one of the most professional noncommissioned officers in the Army today, that his evaluations show his dedicated performance in positions of much greater responsibility, his loyalty to his unit, the mission, and the Army as a whole is a direct reflection of his true character.  He goes on to state that he has attained the rank of sergeant first class, that he has earned several prestigious awards, and he possesses a secret clearance.  He also states that he has served in the capacity of a master sergeant position for a time greater than a year during a wartime period and that he has continued to strive to obtain the next grade of master sergeant by professionally displaying the epitome of a true Army Soldier.  He further states that it has been over 13 years since the incident and that during this time he has proven himself by serving proudly in the Army while giving back to his community and church.  He is also pursuing a college degree.            

4.  The applicant provides three character reference letters; his Enlisted Record Brief; a DA Form 2A (USAR) (Personnel Qualification Record); and Noncommissioned Officer Evaluation Reports covering his last five years of service. 

CONSIDERATION OF EVIDENCE:

1.  Having prior active duty in the Regular Army from 5 November 1991 to 
5 November 1996, the applicant is currently serving as a sergeant first class in a U. S. Army Reserve Active Guard Reserve status.  He is assigned to Headquarters and Headquarters Company, 63d Regional Readiness Command, in Los Alamitos, California. 

2.  Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum General Court-Martial Order Number 19, dated 22 December 1993, shows that on 
5 November 1993 the applicant was convicted by a general court-martial of committing indecent acts with a female under the age of 16.  He was sentenced to be confined for 30 days and to be reduced to E-1.  On 22 December 1993, the convening authority approved the sentence.

3.  A review of the applicant’s performance section of his Official Military Personnel File (OMPF) and his Military Personnel Records Jacket (MPRJ) on the Personnel Electronic Records Management System revealed a copy of the general court-martial order in question in both files. 

4.  In support of his claim, the applicant provided three character reference letters from his chain of command (a colonel, a sergeant major, and a master sergeant). The colonel attests that the applicant has consistently displayed the integrity and true character of a professional Soldier in today’s Army for the past 3 and 1/2 years.  He states that the applicant always met the challenges that were presented to him with conviction of purpose guided by strong moral values, that he was placed in a leadership position where he took charge as the Area Leader and in this time he was able to lead his team to exceed the assigned mission, and that the applicant has been consistently recognized by his command for being the top producer with all of his assigned and implied missions.

5.  The sergeant major states the applicant was recently recognized by the 63d Regional Readiness Command as the highest producing Soldier for the mission of Inactive (sic) Ready Reserve transfers.  He states that the applicant’s profound personal and professional qualities and consistent and dedicated service to his unit, his command and the Army, are what makes the applicant one of the top noncommissioned officers he has met in 24 years of service.  

6.  The master sergeant states that the applicant is a professional noncommissioned officer and that as a specialist he was mobilized with the     10th Mountain Division, answering the call to duty in support of Operation Restore/Uphold Democracy in Haiti in 1993.  He points out that even after completing his tour of duty in the Active Component, the applicant again showed his true character and dedication to his country by returning to the Active Guard Reserve during a period of war.  He spoke of the applicant’s military accomplishments, his community service, and his personal life.  He further states that the applicant is a master of his craft and highly qualified for the rank of master sergeant.       

7.  The applicant also provided eight Noncommissioned Officer Evaluation Reports covering the period February 2001 to January 2006 which show his overall performance was rated successful and his overall potential for promotion was rated as superior by his senior raters. 
8.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File, the MPRJ, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that court-martial orders will be filed permanently in the performance section of the OMPF when a finding of guilty is given on at least one specification.

9.  Table 6-1 of Army Regulation 600-8-104 provides, in pertinent part, that court-martial orders will be filed permanently in the MPRJ when a finding of guilty is given on at least one specification.

DISCUSSION AND CONCLUSIONS:

1.  Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum General Court-Martial Order Number 19, dated 22 December 1993, is properly filed in the performance section of the applicant's OMPF and in his MPRJ in accordance with the governing regulation.  There is no evidence that the applicant’s conviction or sentence were improper.  

2.  The character reference letters from the applicant's chain of command and his evaluation reports were noted.  It appears the applicant’s performance has been without further incident since his general court-martial conviction.  However, indecent acts with a minor, which led to his general court-martial conviction, is an extremely serious offense.  The applicant is commended for having overcome the possible effects of having his court-martial conviction memorialized in his OMPF and MPRJ; however, it is only equitable that they remain in his files so his records may be fairly compared to other Soldiers of his peer group during promotion and other selection boards.  Therefore, there is no basis for granting the applicant’s request to expunge the general court-martial order from his military records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

HF_____  _WC____  _DD_____  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.




__Hubert Fry__________
          CHAIRPERSON




INDEX

CASE ID
AR20060011052
SUFFIX

RECON

DATE BOARDED
20070213
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
134.0200
2.

3.

4.

5.

6.