BOARD DATE:	  February 17, 2010

		DOCKET NUMBER:  AR20090021218 


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 removal of a general court-martial order from his official military personnel file (OMPF).

2.  The applicant states that he went through a court-martial in 1995 that devastated him and his family emotionally.  He was found not guilty of the charges and thought his record was restored to its position prior to the court-martial.  However, in 2008, he was asked to submit a memorandum to explain the court-martial as he was being considered for command.  He was then told in 2009 that the court-martial order was misfiled in the performance section of his OMPF until recently when it was corrected and moved the restricted section of his OMPF.  Nevertheless, this document continues to cloud his record and although he was promoted to major (MAJ) and lieutenant colonel (LTC), it may have affected his selection for command and may affect his future promotion. 

3.  In a continuation to his application the applicant also states that he did not allow the incident to hinder his performance; he continued to do his job to the best of his knowledge and believes that the court-martial order being on his OMPF serves no purpose and that removing it would allow him to compete for promotion and/or command.

4.  The applicant provides a copy of his Officer Record Brief, dated 18 November 2009; a copy of General Court-Martial Orders Number 3, dated 17 August 1994; a copy of a memorandum, dated 2 May 2007, from the U.S. Army Human Resources Command (USAHRC), subject:  Command Review Board; a copy of a self-authored memorandum, dated 18 June 2007, responding to the command review board; and copies of an electronic mail (email) exchange with USAHRC Promotion Branch in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Medical Services (MS) second lieutenant, executed an oath of office, and entered active duty on 6 May 1989.  He subsequently completed various training courses and served in various positions, within and outside continental United States.  He is currently assigned as a Deputy Surgeon, Headquarters, III Corps, Fort Hood, TX.

2.  On 8 August 1994, the applicant pled not guilty at a general court-martial to one specification of conducting himself in a manner unbecoming an officer and gentleman between 24 January 1994 and 31 January 1994 by attempting adultery and one specification of conducting himself in a manner unbecoming an officer and gentleman on 4 March 1994 by making a false sworn statement.  The court found the applicant not guilty and restored all his rights, privileges, and property of which he may have been deprived.  The findings were announced on 8 August 1994.

3.  Headquarters, U.S. Army Southern European Task Force, General Court-Martial Orders Number 3, dated 17 August 1994, were filed in the performance section of his OMPF.

4.  The applicant was promoted to MAJ on 1 September 2000 and to LTC on 1 September 2006.

5.  On 2 May 2007, USAHRC notified the applicant by memorandum that he was selected for command by the Fiscal Year 2008 (FY08) LTC Army Medical Department (AMEDD) Command Selection Board (CSB); however, he was being referred for a Command Review Board (CRB) as a result of the post-board screening process associated with the FY08 LTC AMEDD CSB.  The memorandum further notified him that as a result of the review, information received from the U.S. Army Criminal Investigation Command (USACIDC) warranted a referral to a CRB for reconsideration of his selection for command.

6.  On 18 June 2007, by memorandum addressed to USAHRC, the applicant recaptured the events associated with his court-martial and the fact that he was found not guilty and requested to be retained on the command list.

7.  On 2 November 2009 and subsequent to an email exchange between the applicant and USAHRC officials, the court-martial order was moved from the performance section to the restricted section of his OMPF.
8.  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 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) shows that general court-martial orders are filed in the performance section 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 restricted section of the OMPF.

9.  Army Regulation 600-8-104 states 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 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, and evaluation periods; and corrections to other parts of the OMPF.  It also serves to protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he wishes to have a general court-martial order removed from 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, and 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.  It is acknowledged that the applicant has rebounded from the 1994 incident in an outstanding manner as evidenced by his subsequent promotions and/or excellent overall record.  Nevertheless, the Army has an interest in maintaining the accuracy of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.

4.  As required by the applicable regulation, the court-martial order is properly filed in the restricted section of the applicant's OMPF.  Additionally, there is no evidence that the court-martial order was a factor in his non-selection for command.  There does not appear to be an error or an injustice.  Further, even if the court-martial orders were removed, USACIDC files for command selectees are reviewed.  This incident would have been discovered during the standard screening process.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, there is insufficient evidence to grant him 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)                                         AR20090021218



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021218



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1