IN THE CASE OF:	

		BOARD DATE:	30 March 2010  

		DOCKET NUMBER:  AR20090016712 


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, removal of all traces of his court-martial from his official military personnel file (OMPF) or, if this is not possible, transfer of the court-martial documents to the restricted portion of his OMPF.

2.  The applicant states the record is correct, but he believes it is unjust because he was reprimanded on 16 October 2003, forfeited $500.00 pay per month for 3 months, was reduced to the grade of E-4, and confined for 30 days.

	a.  He states that he violated all of the Army values by his actions, tarnished the reputation of the U.S. Army, and brought disgrace upon himself and the U.S. Army.

	b.  He states that since then he has earned the rank of staff sergeant (SSG)/ pay grade E-6 and has twice been considered for promotion to sergeant first class (SFC)/pay grade E-7, but he was not selected.  He adds he has performed duty in four E-7 positions and requests the court-martial be removed from his OMPF in order for him to be competitive for promotion.

3.  The applicant provides, in support of his application, copies of his court-martial orders, five Noncommissioned Officer Evaluation Reports (NCOER), and three memoranda.



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty in the Regular Army on 20 September 1996.  Upon completion of training he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

2.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, Special Court-Martial Order Number 112, dated 16 October 2003, shows the applicant was arraigned and tried by a special court-martial.

	a.  The applicant pled guilty to the charges and specifications of conspiracy to commit larceny and stealing merchandise of a value of $974.00 on 4 July 2002.

	b.  The applicant was found guilty of all charges and specifications.  He was sentenced to be reprimanded, to forfeit $912.00 pay per month for 3 months, to be reduced to the grade of E-4 [from grade E-6], and to be confined for 30 days.  The sentence was adjudged on 5 August 2003.

	c.  On 16 October 2003, the convening authority approved only so much of the sentence that extended to the reprimand, the forfeiture of $500.00 per month for 3 months, the reduction to the grade of E-4, and the confinement for 30 days.

3.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, Orders 047-632, dated 16 February 2005, promoted the applicant from sergeant (SGT)/pay grade E-5 to SSG (E-6) effective 1 March 2005.

4.  A DA Form 4980-14 (The Army Commendation Medal Certificate) shows that Headquarters and Headquarters Company, 4th Brigade Combat Team, 1st Cavalry Division [Iraq], Permanent Order 043-11, dated 12 February 2007, awarded the applicant the Army Commendation Medal for meritorious service during Operation Iraqi Freedom from 3 August 2006 to 2 August 2007.

5.  A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant successfully completed the 63B3O Basic Noncommissioned Officer Course at the U.S. Army Ordnance Center and School, Noncommissioned Officer Academy, Aberdeen Proving Ground, MD, on 7 March 2008.

6.  Headquarters and Headquarters Troop, 3rd Squadron, 4th U.S. Cavalry, 25th Infantry Division, Schofield Barracks, HI, Permanent Order 338-003, dated 12 February 2009, awarded the applicant the Army Good Conduct Medal (4th Award) for exemplary behavior, efficiency, and fidelity during the period 19 September 2005 to 17 September 2008.

7.  A DA Form 2166-8 (NCOER) covering the period 1 September 2008 through 31 August 2009 shows the applicant's rater indicated that the applicant demonstrated the Army values, he rated his values and NCO responsibilities as "Excellent," and rated his overall potential for promotion and/or service in positions of greater responsibility as "Among the Best."  The NCOER also shows that the applicant's senior rater rated the applicant's overall performance as "Successful" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior."

8.  Except for the court-martial order, there is no evidence of any adverse information and/or actions in the applicant's OMPF.

9.  In support of his application, he provides the following documents.

	a.  Five NCOERs covering the period from September 2002 through August 2008.  These documents show the applicant's four different raters consistently indicated that the applicant demonstrated the Army Values, they rated his values and NCO responsibilities as either "Excellent" (Exceeds Standard) or "Success" (Meets Standard), and rated his overall potential for promotion and/or service in positions of greater responsibility as "Among the Best."  The NCOERs also show that the applicant's four different senior raters consistently rated the applicant's overall performance as "Successful" and his overall potential for promotion and/or service in positions of greater responsibility as "Superior."

	b.  Headquarters, 3rd Squadron, 4th U.S. Cavalry, 25th Infantry Division, Schofield Barracks, HI, memorandum, dated 22 July 2009, subject:  Removal of Derogatory Information, shows the applicant requested transfer of derogatory information from the performance portion of his OMPF to the restricted portion because it has been 5 years since the information was placed in his OMPF and his NCOERs demonstrate his outstanding performance.

	c.  Headquarters, 3rd Squadron, 4th U.S. Cavalry, 25th Infantry Division, Schofield Barracks, HI, memorandum, dated 25 July 2009, subject:  Request for Removal of Adverse Action Flag, shows the applicant's commander attests to the applicant's professional attitude, dependability, and leadership traits.  He also states he believes the military justice system has successfully rehabilitated the applicant who made a poor decision in the past.

	d.  Headquarters, Army Special Review Board, Arlington, VA, memorandum, dated 11 August 2009, informed the applicant the transfer of courts-martial orders does not fall under the jurisdiction of the Department of the Army Suitability Evaluation Board and advised him he could apply to the Army Board for Correction of Military Records (ABCMR) to transfer such a document.

10.  A review of the U.S. Army Human Resources Command, Alexandria, Virginia, website at:  https://www.hrc.army.mil shows that the applicant was eligible for consideration for promotion in the secondary zone by the Fiscal Year 2008 (FY08) SFC Promotion Selection Board and in the primary zone by the FY09 SFC Promotion Selection Board, but he was not selected for promotion.  The applicant was also eligible for consideration for promotion in the primary zone by the FY10 SFC Promotion Selection Board that convened in February 2010.  However, the Board's results have not yet been announced.

11.  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.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation states that only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or no longer used documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

	a.  Table 2-1 shows that court-martial orders (and any supplemental orders) are filed in the performance portion of the OMPF when there is an approved finding of guilty on at least one specification.  If all approved findings are not guilty, the order is filed in the restriction 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 will be removed from the performance portion and transferred to the restricted portion of the OMPF.

	b.  Paragraph 2-3 (Composition of the OMPF) provides, in pertinent part, that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Headquarters, Department of the Army (HQDA), selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

13.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It also provides for transfers from the performance to the restricted portion of the OMPF certain records that are determined upon petition to have served their intended purpose when such transfer would be in the best interest of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that all traces of his court-martial should be removed from his OMPF or, if this is not possible, the court-martial documents should be transferred to the restricted portion of his OMPF because his NCOERs since that time show his professionalism and dedication to duty, but he has twice failed to be selected for promotion to SFC (E-7).

2.  The evidence of record shows that the court-martial order, dated 16 October 2003, is properly filed in the performance portion of the applicant's OMPF.  By regulation, in order to remove the documents in question from the OMPF, there must be clear and convincing evidence showing that the documents are untrue or unjust.  However, the ABCMR can move the court-martial order to the restricted portion or remove it entirely from the OMPF as a matter of equity.

3.  By law, this Board may not disturb the finality of a court-martial conviction. The applicant does not dispute the validity of his court-martial.  Additionally, the applicant acknowledges his guilt and that the court-martial order is correctly filed in his OMPF.  The applicant is not entitled to expungement or removal of the court-martial order from his OMPF.

4.  Records show it has been approximately 7 years and 6 months since the applicant committed the offenses (i.e., on 4 July 2002) for which he was convicted by court-martial.

	a.  The applicant was promoted twice since that time, attaining the rank of SSG (E-6).  In addition, the applicant has successfully competed BNCOC during this period.

	b.  The applicant was awarded the Army Commendation Medal for his meritorious service spanning 1 full year as a platoon sergeant during Operation Iraqi Freedom.

	c.  Records also show the applicant has received at least six NCOERs since 4 July 2002.  All of the NCOERs attest to the applicant's demonstration of Army values, his excellent/successful performance of NCO responsibilities, his outstanding overall performance, and his superior potential for promotion and/or service in positions of greater responsibility.

5.  The applicant has been considered for promotion to SFC (E-7) by three separate promotion boards.  He was not selected for promotion by the first two and the results of the third have not yet been announced.  It is reasonable to conclude the court-martial order that is filed in the performance portion of his OMPF has had an impact on the promotion board members and resulted in the applicant's non-selection for promotion by the first two boards.

6.  The applicant's request for transfer of the unfavorable information (i.e., court-martial order) filed in the performance portion of his OMPF has been carefully considered.  After a thorough review of the applicant's overall record of service, his performance of duty subsequent to the offenses for which he was convicted by court-martial, and the recommendations of his superiors, it is concluded that the applicant's request has merit.

	a.  The evidence of record shows that the incident for which the applicant was court-martialed was based on an isolated lapse in judgment on the part of the applicant more than 7 years ago.  In addition, the applicant's professionalism, character, leader attributes, skills, and actions since the time of the incident, as documented by his NCOERs, clearly show that the applicant has learned and grown both personally and professionally.

	b.  The evidence of record also shows that the applicant's raters and senior raters attest to the applicant's personal character and professionalism, his ability to serve in positions of greater responsibility, and his potential for promotion and continued service in the U.S. Army.  Therefore, there is substantial evidence to conclude that it would serve the best interest of the U.S. Army to grant the requested relief in this case, which might assure the U.S. Army of the applicant's continued invaluable service.

	c.  Therefore, in view of the facts of this case and as a matter of equity, it would be appropriate to correct the applicant's records by transferring the court-martial order, dated 16 October 2003, to the restricted portion of his OMPF.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, Special Court-Martial Order Number 112, dated 16 October 2003, to the restricted portion of the individual's OMPF.

2.  To ensure this decision results in no unintended harm to the individual concerned, following completion of the administrative corrections directed herein, this Record of Proceedings and all documents related to this appeal will also be filed in the restricted portion of the individual's OMPF.

3.  This action does not entitle the applicant to consideration for promotion by an HQDA Standby Advisory Board.

4.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the court-martial order from the individual's OMPF.



      ____________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)                                         AR20090016712



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ABCMR Record of Proceedings (cont)                                         AR20090016712



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