IN THE CASE OF:
BOARD DATE: 21 May 2009
DOCKET NUMBER: AR20090007196
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 Headquarters, 1st Infantry Division General Court-Martial (GCM) Orders Number 38, dated 29 November 2002, be removed from his Official Personnel Military File (OMPF).
2. The applicant states, in effect, that he believes the GCM order in question is erroneous and unjust. He further states that he was found not guilty of all charges and as a result, the GCM order should be removed from his record.
3. The applicant provides the following documents in support of his application: GCM Order Number 38, dated 29 November 2002; and two 6th Squadron,
9th Cavalry Regiment, 3rd Heavy Brigade Combat Team, 1st Cavalry Division Memoranda, Subject: Removal of General Court Martial Documents from OMPF.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame
provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant is currently serving as a sergeant first class (SFC) in the Regular Army at Fort Hood, Texas.
3. The restricted (R) portion of the applicant's OMPF contains Headquarters,
1st Infantry Division, GCM Order Number 38, dated 29 November 2002. This document shows that on 19 June 2002, a GCM found the applicant not guilty of all charges against him, and directed that all rights, privileges, and property of which the applicant had been deprived by virtue of the GCM proceedings be restored.
4. 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 Official Military Personnel File (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 Army regulation shows that GCM Orders are filed on the performance (P) portion of the OMPF when there is an approved finding of guilty on at least one specification. The regulation further stipulates that if all approved findings are not guilty, the GCM Order will be filed in the R portion of the OMPF. If all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, all related orders are removed from the P portion and transferred to the R portion of the OMPF. There are no regulatory provisions provided for removing GCM orders from the R portion of the OMPF.
5. The same regulation provides guidance concerning the R portion of the OMPF and states, in pertinent part, that it 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 R portion is controlled and not routinely released to promotion selection boards. The regulation also states that documents authorized for filing in the R portion are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods. It also serves to protect the interest of the Soldier and the Army.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that GCM Order Number 38 is erroneous and unjust and therefore should be removed from his OMPF was carefully considered.
2. However, by regulation if all approved findings of a GCM are not guilty, the GCM Order is filed in the R portion of the member's OMPF to ensure the historical accuracy of the record. There are no regulatory provisions that provide for removal of a GCM order from the R portion of the OMPF. The evidence of record confirms that the GCM Order in question was properly filed in the R portion of the applicant's OMPF in accordance with the existing law and regulation. Therefore, there appears to be no error or injustice related to this issue. As a result, there is an insufficient evidentiary basis to support granting the 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) AR20090007196
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