IN THE CASE OF:
BOARD DATE: 3 December 2009
DOCKET NUMBER: AR20090014154
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 141, dated 15 August 2005, and Special Court-Martial Order Number 94, dated
1 May 2006, be removed from his Official Military Personnel File (OMPF).
2. The applicant states, in effect, that a court-martial order which was thrown out by the court and ruled as a mistrial is filed on the restricted section of his OMPF. He contends that this court-martial was reconvened at a later date, that he was found not guilty of all charges, and this court-martial order is filed on the performance section of his OMPF. He indicates that mistrials are not to be included in a Soldier's restricted file as the trial was non-existent for legal purposes and that he can find no legal basis for a court-martial ending with a full acquittal to be placed in his performance section as it may be an attempt to stop a Soldier's career progression based on the appearance of impropriety.
3. The applicant provides excerpts from Army Regulation 600-8-104 and a copy of Special Court-Martial Order Number 94, dated 1 May 2006, in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 28 February 1991 and is currently serving on active duty in the rank of sergeant first class.
2. Special Court-Martial Order Number 141, dated 15 August 2005, shows that on 8 June 2005, contrary to his pleas, the applicant was convicted by a special court-martial of maltreatment and obstructing justice. He was sentenced to be reduced to E-6 and to receive a reprimand. On 1 August 2005, a post-trial session was held in his case to determine if the court had jurisdiction over the applicant at the time of trial. On 2 August 2005, the military judge determined that the court did not have jurisdiction at the time of trial and set aside the findings of guilty and dismissed the charges without prejudice to the government's right to again initiate court-martial proceedings against the applicant for the same offenses. Based on the judge's ruling, the sentence was set aside.
3. Special Court-Martial Order Number 94, dated 1 May 2006, shows that on
15 November 2005, the applicant pled not guilty and was found not guilty of maltreatment of a private and obstructing justice.
4. A review of the restricted section of the applicant's OMPF on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the two special court-martial orders in question. The available iPERMS does not show any court-martial orders in the performance section.
5. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF. Table 2-1 of this Army regulation states that court-martial orders will be filed in the restricted section of the OMPF if all approved findings are not guilty. The regulation also shows that if all charges and specifications of a court-martial order are later dismissed or if all findings of guilty have been reversed in a supplemental action, all related documents will be removed from the performance section and transferred to the restricted section of the OMPF.
DISCUSSION AND CONCLUSIONS:
1. Special Court-Martial Order Number 141, dated 15 August 2005, shows the applicant was convicted of two specifications of maltreatment and one specification of obstructing justice and the sentence was set aside on 2 August 2005. The regulatory guidance states that if all charges and specifications of a court-martial order are later dismissed or if all findings of guilty have been reversed in a supplemental action, all related documents will be removed from the performance section and transferred to the restricted section of the OMPF. Special Court-Martial Order Number 141, dated 15 August 2005, is properly filed in the applicant's restricted section of his OMPF. Therefore, there is no basis for granting the applicant's request to remove this special court-martial order from his OMPF.
2. The regulatory guidance is to file a court-martial order in the restricted section of the OMPF if all approved findings are not guilty. Special Court-Martial Order Number 94, dated 1 May 2006, shows the applicant was found not guilty of maltreatment and obstructing justice on 15 November 2005. This special court-martial order is properly shown on the restricted section of the applicant's OMPF. The available iPERMS does not show any court-martial orders in the performance section. Therefore, there is no basis for granting the applicant's request to remove this special court-martial order from his OMPF.
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) AR20090014154
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