IN THE CASE OF:	  

		BOARD DATE:	       11 JUNE 2009

		DOCKET NUMBER:  AR20090004617 


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 to have a special court-martial order moved from the performance section of his official military personnel file (OMPF) to the restricted section of his OMPF.

2.  The applicant states that the special court-martial order filed in the performance section of his OMPF prevents him from competing for consideration for promotion to sergeant first class (SFC)/E-7.  He further adds that the incident for which he was found guilty happened several years ago and, in effect, has served its purpose. 

3.  The applicant provides a copy of Special Court-Martial Order Number 19 issued by Headquarters, 10th Mountain Division, Fort Drum, NY, on 5 November 1998; a copy of a general officer memorandum of reprimand (GOMOR), dated 19 January 1998; a copy of his DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) for the period January 1997 to December 1997; and a copy of his DA Form 2166-8 (NCO Evaluation Report) for the period 1 April 2007 to 31 March 2008 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army staff sergeant (SSG) who initially enlisted in the Regular Army on 27 February 1989.  He was trained in and awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  He was promoted through the ranks to sergeant (SGT) on 1 September 1994.
2.  On 19 January 1998, the applicant received a GOMOR for being apprehended on 30 November 1997 for driving a vehicle while under the influence of alcohol and upon apprehension failing a field sobriety test for which his blood level content was 13 percent mg/ml.  The GOMOR is filed in the performance section of his OMPF.

3.  On 19 June 1998, while assigned to 710th Main Support Battalion, 10th Mountain Division, Fort Drum, NY, the applicant pled not guilty at a special court-martial to one specification of operating a vehicle while drunk on or about 30 November 1997.  The Court found him guilty and sentenced him to reduction to specialist/E-4, a forfeiture of $500.00 pay for 1 month, and performance of hard labor for 30 days without confinement.  The sentence was adjudged on 19 June 1998.

4.  On 5 November 1998, the convening authority changed the sentence from 30 days of hard labor without confinement to 45 days of restriction, the forfeiture of $500.00 pay for 1 month to a forfeiture of $500.00 pay per month for 3 months, and ordered the amended sentence executed.

5.  Headquarters, 10th Mountain Division, Fort Drum, NY, Special Court-Martial Order Number 19, dated 5 November 1998, was filed in the performance section of his OMPF.

6.  The applicant's records also show that subsequent to this incident, he was promoted again to SGT/E-5 on 1 October 1999 and executed a series of extensions and/or reenlistments in the Regular Army including two 3-year reenlistments, on 20 April 2000 and on 14 November 2002.  He was also promoted to SSG/E-6 on 1 August 2004 and completed multiple deployments in support of Operations Enduring/Iraqi Freedom.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF.  Chapter 2 of this Army regulation provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Table 2-1 (Composition of the OMPF) of this regulation shows that court-martial orders are filed in the performance section when there is an approved finding of guilty on at least one specification.  Army Regulation 
600-8-104 also provides guidance concerning the restricted section of the OMPF. 
It states, in pertinent part, that the restricted section is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of the information in the restricted section is controlled and not routinely released to promotion selection boards.  This Army regulation also states that documents authorized for filing in the restricted section are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and corrections to other parts of the OMPF.  It also serves to protect the interests of the Soldier and the Army.

8.  Rule for Court-Martial (RCM) 1107(d)(1) allows a convening authority in taking initial action on an adjudged sentence to change a punishment to one of a different nature as long as the severity of the punishment is not increased.  A restriction is a lesser form of punishment as compared to hard labor without confinement and a sentence to hard labor may be mitigated to a restriction at the rate of 1 and one-half months of restriction for 1 month of confinement.  A convening authority may not under RCM 1107(d) or any other law increase the amount of forfeiture adjudged in a case.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wishes to have a special court-martial order moved from the performance section to the restricted section of his OMPF.

2.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

3.  As an equitable consideration, the special court-martial convening authority, in taking action on the applicant's sentence, improperly increased the punishment by extending the adjudged forfeiture to 3 months.  While this change did not invalidate the applicant's conviction, it resulted in an unauthorized punishment of two additional months of forfeiture being imposed.  This fact weighs in the applicant's favor, in addition to other factors in this case, for moving the court-martial order to the restricted portion of the OMPF.

4.  The applicant also has a GOMOR in the performance section of his OMPF for the same incident, given approximately 6 months prior to his trial.  Since the GOMOR stems from the same incident involved in his trial, this reprimand in fairness should also be moved.  Although the applicant is not explicit in his request, it is a fair implication that he also wishes this.

5.  It appears that after his mishap in 1998, the applicant has rebounded in a successful manner as evidenced by his successful NCO Evaluation Reports, satisfactory service school academic evaluation report, promotion to SSG/E-6, and multiple deployments in support of Operations Enduring/Iraqi Freedom.  The applicant's date of rank to SSG/E6 is 1 August 2004.  He is in the primary zone for consideration for promotion to SFC/E-7.  However, the existence of the special court-martial order and the GOMOR in his OMPF performance section is a detractor that sticks out as soon as his records are reviewed.  There is no harm to the Army or to the Soldier if the court-martial order and GOMOR are moved to the restricted section.  Therefore, in the interest of justice and as exception to policy the applicant should be granted relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  _____X___  __X______  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 moving Special Court-Martial Order Number 19, dated 5 November 1998, and the GOMOR, dated 19 January 1988, from the performance section to the restricted section of his OMPF.



      ___________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.

ABCMR Record of Proceedings (cont)                                         AR20090004617



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004617



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1