IN THE CASE OF:
BOARD DATE: 19 August 2008
DOCKET NUMBER: AR20080011198
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his record of trial by summary court-martial be removed from his military records.
2. The applicant states that the guilty verdict along with the sentence of the court-martial has been disapproved and is no longer valid.
3. The applicant provides a memorandum from his commanding general, a Record of Trial by Summary Court-Martial (DD Form 2329), an e-mail from a lieutenant, and the document showing the removal of his suspension of favorable personnel actions.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 28 June 1994.
2. On 14 December 2007 the applicant, then serving as a staff sergeant, was convicted by a summary court-martial for two specifications of violation or Article 93, Uniform Code of Military Justice, for maltreatment of a private first class, contrary to his pleas. His sentence consisted of a reduction to the rank of sergeant and a forfeiture of $1,753.00.
3. On 20 December 2007, the sentence was approved and ordered to be executed.
4. On 29 March 2008, the applicants commanding general disapproved the findings and sentence of the applicants summary court-martial. The commanding general added that the charges will be forwarded to the applicants current chain of command and a rehearing on the charge for which he was convicted will be conducted, if practicable. If the Summary Court-Martial Convening Authority determines that such a rehearing is impractical, the charge and its specifications will be dismissed.
5. Army Regulation 600-8-104 describes what forms and documents are to be filed in the Official Military Personnel File (OMPF) and where they are to be filed. This regulation states that if all charges and specifications contained on a DD Form 458 (Charge Sheet) are later dismissed or if all findings of guilty have been reversed in a supplemental action, all related documents from the Performance (P) Section are transferred to the Restricted (R) Section.
DISCUSSION AND CONCLUSIONS:
1. The applicable Army regulation specifies that if all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental action, all related documents are removed from the P Section and transferred to the R Section.
2. For historical purposes, the Army has an interest in maintaining the accuracy of its records. The information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.
3. In the absence of a showing of material error or injustice, those records should not be changed.
4. Since the removal of his record of summary court-martial would be in contravention of Army regulation, to remove those documents would be providing him with a benefit not afforded to other soldiers in like situations. The applicant has not provided any evidence or argument which would warrant granting him such a benefit.
5. While the transfer of the record of summary court-martial from the P Section to the R Section of his OMPF is administrative, it would be expedient for the Board to direct that transfer to insure the applicants military career is not adversely affected by that document.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
___X____ ___X____ ___X___ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the record of summary court-martial from the P Section to the R Section of his OMPF.
2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing the record of summary court-martial from his records.
_______ _ X _______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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