IN THE CASE OF:
BOARD DATE: 11 December 2008
DOCKET NUMBER: AR20080015889
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, in effect, that Special Court-Martial Order Number 202, dated 28 October 2005, be removed from the restricted section of his Official Military Personnel File (OMPF).
2. The applicant states, in effect, that the court-martial order was entered into the system without his knowledge and that he feels it will have an impact on his career. He contends that the court-martial order in his OMPF is unjust because he was acquitted of all accusations. He states the case was removed from Fort Knox due to violation of his Fifth Amendment rights at Fort Leavenworth where it was downgraded to a field grade Article 15 hearing and that he was acquitted of all charges. He indicates that this time in his military career contributed to his divorce, advancement in promotion, and military career.
3. The applicant also points out that three of his Noncommissioned Officer Evaluation Reports (NCOERs) and his Enlisted Record Brief show he was a drill sergeant and that if there were any wrongdoings as a drill sergeant the privilege of wearing the Drill Sergeant Badge and holding a special qualification identifier of X would have been revoked. He claims that the one NCOER shows that his command tried to hurt him with a negative NCOER but could not put in any specifics because nothing was proven. Counseling was never conducted, but they still managed to produce an NCOER. He also states that during the second NCOER he was attached to an S4 section while the investigation was ongoing until he was exonerated. His states his last NCOER as a drill sergeant clearly shows that he was a professional at all times.
4. The applicant provides an Enlisted Record Brief; and three NCOERs covering the periods May 2004 through April 2005, May 2005 through April 2006, and
1 May 2006 through 30 November 2006 in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant is currently serving on active duty in the Regular Army as a staff sergeant.
2. Special Court-Martial Order Number 202, dated 28 October 2005, shows that court-martial proceedings were terminated on 11 July 2005. The case was transferred to a different convening authority who withdrew the charges and specifications (eight specifications of maltreatment and one specification of obstruction of justice) without prejudice. All rights, privileges, and property were restored to the applicant.
3. A review of the restricted section of the applicants OMPF on the Personnel Electronic Records Management System revealed a copy of the court-martial order in question.
4. Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Table 2-1 of the regulation states, in pertinent part, that if all charges and specifications of a court-martial are later dismissed or if all findings of guilty have been reversed in a supplemental action, remove all related documents from the performance section of the OMPF and transfer them to the restricted section of the OMPF.
DISCUSSION AND CONCLUSIONS:
The applicants contentions were noted. However, the special court-martial order is properly filed in the restricted section of the applicant's OMPF in accordance with the governing regulation. There is no evidence that it was improperly imposed. Therefore, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X_____ ____X____ ____X____ 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.
_____XXX__ _ _______ ___
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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