IN THE CASE OF:	  

		BOARD DATE:	       12 March 2009

		DOCKET NUMBER:  AR20080019591 


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, removal of his General Court-Martial from the performance section of his Official Military Personnel File (OMPF) and from his Military Personnel Records Jacket (MPRJ) and that it be filed in the restricted section of his OMPF.

2.  The applicant states, in effect, that over 15 years ago he was court-martialed.  He was found not guilty of several charges and allowed to continue with his military career.  He wants the court-martial removed to the restricted section of his OMPF so that it does not negatively prejudice his consideration for promotion.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army in the rank of staff sergeant, pay grade E-6, as an instructor/writer with the 187th Medical Battalion, Fort Sam Houston, Texas. 

2.  The applicant served as a member of the United States Army Reserve from September 1991 to April 1992.  During this period of service he completed his initial training and was awarded military occupational specialty (MOS) 91D (Operating Room Specialist).

3.  On 24 November 1992, the applicant enlisted in the Regular Army.  He was subsequently assigned to the 187th Medical Battalion, Fort Sam Houston for training as a behavioral science specialist, MOS 91G.  

4.  On 11 May 1993, the applicant was assigned duty as a behavioral science specialist with the 710th Maintenance Support Battalion, 10th Mountain Division, Fort Drum, New York.

5.  General Court-Martial Order Number 16, 10th Mountain Division, dated 
16 November 1993, shows the applicant was charged under the Uniform Code of Military Justice (UCMJ) on three charges:  Charge I was for violation of Article 90, willfully disobeying a lawful order of a superior commissioned officer.   Charge II was for violation of Article 120 (three specifications), rape.  Charge III was for violation of Article 134 (two specifications), impeding an investigation by tampering with evidence and for influencing the testimony of [the injured party].  The applicant pled not guilty to all charges and specifications.  The court found him guilty of Charge I and its specification and not guilty of all remaining charges and specifications.  The sentence, as adjudged on 9 September 1993, was a reduction to the pay grade of E-1 and restriction to the limits of the Fort Drum Military Reservation for 30 days.  The convening authority disapproved the finding of guilty and sentence and dismissed [all] charges. 

6.  A review of the applicant's OMPF shows the record of the subject court-martial is filed in both the performance section of his OMPF and his MPRJ.

7.  On 1 June 1994, the applicant was promoted to specialist, pay grade E-4.

8.  On 28 January 1998, the applicant was promoted to the rank of sergeant, pay grade E-5.

9.  On 1 June 2001, the applicant was promoted to the rank of staff sergeant, pay grade E-6.

10.  Army Regulation 600-8-104 (Military Personnel Information Management and Records) provides, in pertinent part, that all personnel information recorded under the authority of this regulation is the property of the United States Government.  Once recorded, it will not be removed except as provided by law or this regulation.  Types of authorized military personnel files are the OMPF, MPRJ, Career Management Individual File (CMIF), and the Classified Personnel 


Record (CPR).  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by one or more of the following:
(1) The Army Board for Correction of Military Records (ABCMR); (2) The Department of the Army Suitability Evaluation Board (DASEB); (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, Human Resources Command (5) The OMPF custodian when documents have been improperly filed; (6) Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, Human Resources Command, St. Louis, Missouri ; (8) Chief, Appeals Branch, National Guard Personnel Center.   Documents designated for transfer from the performance or service section will be put on the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted fiche documents mistakenly filed in the performance or service section to the restricted section.  Unless approved by the Deputy Chief of Staff, Personnel or by the Human Resources Command Promotions Branch, this action does not justify standby or special selection board consideration. 

11.  Army Regulation 600-8-104, further provides at Table 2-1, Composition of the OMPF, that if all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, remove all related orders from the performance section and file in the restricted section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the current filing of his court-martial may have a negative impact on his consideration for promotion.

2.  The evidence of record clearly shows the applicant was charged and tried by a General Court-Martial.  However, after acquittal of numerous charges, the convening authority dismissed all charges and specifications.

3.  In view of the above, the subject record of court-martial should be removed from the performance section of his OMPF and MPRJ and filed in the restricted section of his OMPF. 

4.  Additionally, this record of proceedings should be filed only in the restricted section of the applicant’s OMPF.




BOARD VOTE:

____X___  ____X __  ___X  __  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the subject court-martial record from the performance section of the individual's OMPF and MPRJ; and

	b.  filing the record of court-martial and this record of proceedings in the restricted section of his OMPF.





      _______ _ 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.

ABCMR Record of Proceedings (cont)                                         AR20080019591



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ABCMR Record of Proceedings (cont)                                         AR20080019591



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