IN THE CASE OF:	  

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090008901 


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 correction of his military records by removing the general court-martial record he received in 1987. 

2.  The applicant states that he received a general court-martial in 1987 but was allowed to reenter the military because he had a lot to offer.  He redeemed himself and received an honorable discharge.  The applicant feels that he should be able to enjoy all of the rights of citizenship.  The "scares" of a court-martial that occurred in his early youth should not continue to be reflected in his records.  

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate or Release or Discharge from Active Duty).

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  On 17 September 1981, the applicant enlisted in the Regular Army for 
3 years.  He completed his initial training and was awarded military occupational specialty 75E (Personnel Actions Specialist).

3.  During the period 5 February 1982 to 28 January 1983, the applicant served with the 2nd Adjutant General Company, 2nd Infantry Division, in the Republic of Korea.  

4.  On 6 March 1983, the applicant was assigned to Fort Sill, Oklahoma.  On 
19 November 1983, he was assigned to the Medical Holding Company, Walter Reed Army Medical Center in a patient status.  Subsequently, he was assigned to Fort Eustis, Virginia, for duty as a personnel actions specialist.

5.  On 1 February 1984, the applicant was promoted to specialist four, pay 
grade E-4.

6.  On 5 February 1986, the applicant departed Fort Eustis, Virginia, for assignment in the Federal Republic of Germany.  On 8 March 1986, he was assigned to the 189th Personnel Service Company.

7.  Records show that on 2 August 1987, the applicant was absent without leave (AWOL) for 1 day.  There is no available record of any punishment for this misconduct.

8.  On 23 June 1988, before a military judge at a general court-martial, the applicant pled guilty to all of the following charges and specifications:

	a.  Charge I, violation of Article 112a, of the Uniform Code of Military Justice (UCMJ), (three specifications) for wrongful use of some amount of marijuana; for wrongful possession and use of some amount of amphetamines; and for wrongful possession of approximately 25 grams of marijuana in the hashish form; and

	b.  Charge II, violation of Article 92, of the UCMJ (one specification) for wrongfully selling rationed cartons of cigarettes to unauthorized persons.

9.  On 23 June 1988, the military judge found the applicant guilty of all charges and specifications.




10.  The military judge sentenced the applicant to a bad conduct discharge, confinement for 9 months, a forfeiture of $500.00 pay for 9 months and reduction to pay grade E-1.  The sentence was approved and, except for the bad conduct discharge, ordered executed.  The applicant was imprisoned on 
23 June 1988.

11.  On 4 November 1988, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

12.  General Court-Martial Order Number 183.1, United States Army Correctional Activity, Fort Riley, Kansas, dated 2 February 1989, suspended the unexecuted portion of the sentence to a forfeiture of $500.00 pay for 9 months to 2 August 1989.  The applicant was released from prison on 2 February 1989.  He had served 219 days in confinement.

13.  General Court-Martial Order Number 482, United States Army Correctional Activity, Fort Riley, Kansas, dated 18 May 1989, remitted the unexecuted portion of the sentence to a bad conduct discharge, confinement for 9 months, and the forfeiture of $500.00 pay for 9 months.  The applicant had successfully completed the Military Instruction Course and was thereby returned to duty.  The provisions of Article 71(c) had been met.

14.  On 2 February 1989, the applicant was assigned duty as a personnel actions specialist with the United States Army Correctional Activity, Fort Riley, Kansas.  On 19 June 1989, he was further assigned to Fort Hood, Texas.

15.  On 22 October 1991, the applicant was honorably discharged due to a physical disability.  He had attained the rank of specialist, pay grade E-4, and had completed 9 years, 5 months, and 26 days of creditable active service and had accrued 220 days of lost time due to being AWOL and in confinement.

16.  The applicant’s court-martial orders are filed in his Military Personnel Records Jacket (MPRJ).  His service fiche does not contain any copies of these orders.  His performance fiche is not in the available records.
 
17.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.
18.  AR 600-8-104 (Military Personnel Information Management /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 Official Military Personnel File (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 file or moved to another part of the file unless directed by one or more of the following: (1) The 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 section documents mistakenly filed on 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the general court-martial record should be removed from his military records because it interferes with his rights as a citizen.

2.  The evidence in this case shows the applicant’s court-martial action was proper, with no evidence of procedural error that may have jeopardized his rights.  Furthermore, there is no evidence that the action was in error or unjust.  The court-martial action is properly filed in his records.

3.  For historical purposes the Army has an interest in maintaining the integrity of its records.  The information contained in those records must reflect the conditions and circumstances that existed at the time the records were created.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20090008901



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ABCMR Record of Proceedings (cont)                                         AR20090008901



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