IN THE CASE OF:	

		BOARD DATE:	       30 April 2009

		DOCKET NUMBER:  AR20090000143 


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 the record of his special court-martial conviction be relocated to the restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he has been a model Soldier and that relocating the record of this one isolated incident will improve his chances for promotion. 

3.  The applicant provides, in support of his request, copies of the final court-martial order; a letter suggesting he seek administrative relief; his memorandum requesting relief and describing his career since that incident; memoranda of support from his first sergeant, company commander and battalion command sergeant major; recent Noncommissioned Officer Evaluation Reports (NCOERs), Service School Academic Evaluation Reports, and award certificates and orders.

CONSIDERATION OF EVIDENCE:  

1.  The applicant enlisted in the  U.S. Army Reserve (USAR) in November 1984.  In December 1986 he completed a Bachelor of Science in Education at  Middle Tennessee State University.  He had been awarded the Armed Forces Reserve Medal for the period November 1984 to November 1993, an Army Commendation Medal and two Army Achievement Medals.  On 6 March 1994, at the age of 32, he was discharged from the USAR, to enlist in the Regular Army.   

2.  On 8 December 1995 the applicant, then a specialist, was convicted by a special court-martial of one charge and one specification each of possession of cocaine and possession of drug paraphernalia.  The approved sentence comprised reduction to pay grade E-1, forfeiture of $563.00 pay per month for 
3 months and hard labor without confinement for 45 days.  The final court-martial order is currently filed in the performance portion of his OMPF.  Other documents related to the incident are filed in the restricted portion.

3.   The applicant reenlisted in pay grade E-4 on 6 June 1997.  He was promoted to sergeant, pay grade E-5, on 1 September 1997 and to staff sergeant, pay grade E-6, on 1 March 2002.  

4.  The performance portion of the applicant's OMPF contains 14 NCOER's.  They show that, as a staff sergeant,  the applicant has exclusively been evaluated in part IVa as meeting Army Values.  In part IVb he has consistently  been rated as successful or meeting standards and has  been rated as excellent or exceeding standards 30 percent of the time.  His raters have all marked him in the top box as "Among the Best."  His senior raters have marked him exclusively in the top boxes for overall performance and overall potential.  All of the markings and ratings have been supported by appropriate commendatory remarks.         

5.  The applicant has completed the Basic NCO Course, NCO Basic Information Technology Specialist Course and Network Switching Systems Operations and Maintenance Course.  

6.  Since the court-martial he has been awarded three Army Commendations Medals, two Army Achievement Medals and four Army Good Conduct Medals.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides that court-martial orders are to be filed in the performance portion of the OMPF, if there is an approved finding of guilty on at least one specification. 

8.  The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.  The Board may, however, grant clemency on equitable grounds.

9.  The letters of support submitted with the application evidence the following:

	a.  The company first sergeant relates that, at the time the memorandum was written, the applicant was assigned as the NCO-in-Charge of  a detached signal support team in Iraq.  He was responsible for the performance and welfare of 13 Soldiers and had a successful ongoing relationship with a team of 40 civilian employees.  This was described as a Sergeant First Class (SFC) position.  The first sergeant has seen the applicant's professionalism and dedication and believes that there is no chance that he would ever commit another offense like that again.  He believes the record of court-martial conviction should be relocated to the restricted portion of the OMPF to improve the applicant's promotion prospects.

	b.  The Company commander writes, "SSG D____ is one of two Platoon Sergeants in this deployed Unit.  He has always displayed professionalism and [a] marked level of wisdom and self control.  He has embraced leadership and responsibility making a difference for Soldiers and towards mission success.  After talking with SSG D____'s previous company commander, we both agree that his conduct as we have known him has always been honorable and in step with Army Values.  I strongly support the transferring of Special Court-Martial Number 3, dated 19 January 1996 to SSG D____'s restricted fiche of his Official Military Personnel File."

	c.  The battalion command sergeant major states that the applicant possesses the qualities desired of those of higher grade and is truly worthy of future advancements.  He recommends transfer of the court-martial document , "in order for him to be competitive for advancement."

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that, since the court-martial, he has been a model Soldier and that relocating the record of this one isolated incident will improve his chances for promotion. 

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The document recording the conviction is appropriately filed. 

3.  The Board is precluded from any action which would disturb the finality of a court-martial conviction.  However, it can change the filing directions for the document(s) concerned.

4.  The applicant's record, specifically his NCOER's, two reenlistments, subsequent promotions, award of four Army Good Conduct Medals, and the support he has received from his chain of command indicate that he has earned the opportunity of improving his chances of being selected for future promotion.  Relocating the court-martial order may accomplish that goal. 

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

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 relocating, as an exception to policy, Special Court-Martial Number 3, dated
19 January 1996 to the restricted portion of his Official Military Personnel File."



      _________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)                                         AR20090000143





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ABCMR Record of Proceedings (cont)                                         AR20090000143



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