RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR2007001786 


	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. Gerard W. Schwartz

Acting Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. Lester Echols 

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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, 1st Advanced Individual Training/One Station Unit Training Brigade, Armor, US Army Armor Center, Fort Knox, Kentucky, Summary Court-Martial Order Number 23, dated 3 November 1981, be transferred to the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the one year requirement has elapsed and he was honorably discharged in 1985 after serving 11 years as an instructor in the 100th Division Training Group at Fort Knox, Kentucky.  

3.  The applicant states that he reentered active duty in 1997 in the rank of sergeant/pay grade E-5 with the 16th Calvary, Fort Knox, Kentucky were he served for 26 months.  The applicant states he was also promoted to the rank of Staff Sergeant/pay grade E-6, 14 months after reentering active duty.  The applicant states that he has served honorably for the last 26 years.  

4.  The applicant states that in January 2000, he was assigned to the 
1-1 Calvary, Buedingen, Germany, where he served as a Tank Commander for 18 months in Alpha Company and then assigned as a Combined Forces Europe Non-Commissioned Officer in Charge for 17 months.  He was then assigned as an instructor in the United States Army Reserve (USAR) for initial entry Soldiers for a period of 27 months.  

5.  The applicant states that in April 2005, he was assigned to 1-4 INF Hohenfels, Germany, Delta Company, at the Joint multinational Readiness Center, training US Forces and Multinational Forces to prepare for missions in Iraq and Afghanistan.  The applicant makes reference to his past Noncommissioned Officer Evaluation Reports (NCOERs) and his time in service since his Summary Court-Martial.

6.  The applicant provides a self-authored statement, dated 10 January 2007 and a copy of Summary Court-Martial Order Number 23, dated 3 November 1981, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the rank of staff sergeant/pay grade E-6, and assigned to Headquarters and Headquarters Company, 1st Battalion of the 36th Infantry Division, Camp Hit, Iraq.

2.  The applicant's complete military records are not available.  However, there are sufficient records available to conduct a fair and impartial review of this case. 

3.  The applicant's record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 21 June 1979, for failing to go at the time prescribed to his appointed place of duty.  

4.  The applicant's record contains a memorandum for the Resolution of Unfavorable Information from the Department of the Army Suitability Evaluation Board (DASEB), dated 18 January 2007.  The memorandum shows that the applicant requested transfer of the 21 June 1979 Article 15 from the performance portion to the restricted portion of his Official Military Personnel File (OMPF).  The memorandum also shows that after careful consideration, DASEB voted to approve the transfer based upon intent served.  

5.  On 30 October 1981, the applicant pled guilty at a Summary Court-Martial to 6 specifications under Article 92 of the Uniform Code of Military Justice for failure to obey a lawful general regulation by accepting or borrowing a sum of money from several Soldiers in training.  The Court sentenced him to a reduction to the grade of E-4, forfeiture of $508.00 per month for one month, and 45 days restriction.  

6.  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 MILPER 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 guilt on at least one specification.  There are no provisions for automatically transferring court-martial orders to the restricted portion of the OMPF.

7.  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 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 provides instructions for filing unfavorable information in a Soldier's OMPF.  However, there are no provisions in that regulation or Army Regulation 600-37 that indicates a court-martial order will be removed or transferred to the restricted portion of the OMPF.

4.  Evidence shows the summary court-martial order was properly filed in accordance with governing regulations.  However, that does not alone make it unjust.  No basis in law or equity exists to move the document to the restricted 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

___LE___  _MJF___  __LMB___  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.




___Lester Echols ____
          CHAIRPERSON


INDEX

CASE ID
AR20070001786
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
M
ISSUES         1.  

2.

3.

4.

5.

6.