IN THE CASE OF:
BOARD DATE: 22 May 2009
DOCKET NUMBER: AR20090003989
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 10, dated 27 May 1992, be transferred to the restricted portion of his Official Military Personnel File (OMPF).
2. The applicant states, in effect, the incident resulting in the court-martial action happened in 1992 and he should not have to continue to be punished for it.
3. The applicant provides two letters of support from his chain of command, five DA Forms 2166-8 (NCO Evaluation Report), an order for award of the Air Assault Badge, a DA Form 1059 (Service School Academic Evaluation Report), a Letter of Completion for the academic portion of the Instructor Training Course, a Certificate of Training for completion of the 40-hour Master Drivers Training Course, and a Certificate of Induction into the Honorable Order of Saint Christopher in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 15 May 1991 and has remained on active duty through continuous reenlistments. He is currently serving on active duty in the rank/grade of staff sergeant (SSG)/E-6.
2. On 2 April 1992, the applicant appeared before a Special Court Martial for falsely and wrongfully obtaining from AT&T, USADirect telephone services of a combined value in excess of $100.00 on divers occasions from December 1991
to January 1992. He was subsequently convicted and his sentence was adjudged on 1 April 1992. Special Court-Martial Order Number 10, published by Headquarters, 32nd Army Air Defense Command, Darmstadt, Germany, dated 27 May 1992 shows the applicant was sentenced to be reduced to Private/E-1, to forfeit $523.00 pay per month for 2 months, and to be confined for 2 months. The applicant was a private (PV2)/E-2 at the time of the incident and court-martial conviction.
3. A review of the performance portion of the applicant's OMPF on the Interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the cited special court-martial order.
4. The applicant provided two letters of support from his chain of command which recommended approval of his request to transfer the court-martial order to the restricted portion of his OMPF.
5. The additional supporting documentation provided by the applicant attest to his subsequent good-service.
6. 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 provides, in pertinent part, that a court-martial order will be filed in the performance portion of the OMPF when there is an approved finding of guilty on at least one specification.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that the special court-martial order be transferred to the restricted portion of his OMPF have been carefully considered.
2. The applicant's desire to have a 17-year old special court-martial order transferred to the restricted portion of his OMPF is understandable. However, this document is properly filed in the performance portion of the applicant's OMPF in accordance with the governing regulation. There is no evidence that it was improperly imposed or filed.
3. The applicant's subsequent good-service and promotions are acknowledged. However, it would not be equitable to place the applicant on the same competitive footing as Soldiers who have no blemish on their records.
4. In the event the applicant is being considered for promotion and school selection, board members are experienced and capable of distinguishing between one youthful indiscretion and a "problem" record of service. In the event a selection choice comes down between two Soldiers with an equal record of service, all information properly filed in an OMPF must be available to board members in order to equitably make their selection choice. Therefore, there is no basis for granting the applicant's requested relief.
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.
__________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) AR20090003989
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ABCMR Record of Proceedings (cont) AR20090003989
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