IN THE CASE OF:
BOARD DATE: 20 October 2010
DOCKET NUMBER: AR20100012002
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 a DA Form 4430 (Department of the Army Report of Result of Trial) be corrected to show Article 112a instead of Article 125(a).
2. The applicant states, in effect:
* The DA Form 4430 cites Article 125(a) (sodomy) when it should cite Article 112a (possession of a controlled substance)
* He might be improperly prejudiced by reason of the annotation by local, state, or federal authorities and employers who utilize this information in consideration for employment purposes
3. The applicant provides:
* Letter, dated 12 March 2010, from the Disabled American Veterans
* DA Form 4430
* DD Form 2329 (Record of Trial by Summary Court-Martial)
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 enlisted in the Regular Army on 21 August 2001 and served as a signal support systems specialist in Kuwait/Iraq.
3. Records show on 30 September 2005, contrary to his plea, the applicant was convicted by a summary court-martial of Article 112a (wrongful use, possession, etc., of controlled substances). He was sentenced to be confined for 7 days, reduced to E-3, to forfeit 2/3 pay for 1 month, and to perform extra duty for
30 days. On 3 October 2005, the convening authority approved the sentence.
4. Item 3 (Summary of offenses, pleas, and findings) of the applicant's DA Form 4430 shows the entry "125(a)" in the ART/UCMJ [Article/Uniform Code of Military Justice] section.
5. On 9 December 2005, the applicant was discharged for misconduct (commission of a serious offense).
6. The applicant's DA Form 4430 is not independently filed on the interactive Personnel Electronic Records Management System (iPERMS). However, it is an attachment to his discharge package filed in the military personnel records jacket and the service and restricted sections.
7. The UCMJ and Manual for Courts-Martial (MCM) govern the U.S. military justice system. The UCMJ does not show "Article 125(a)" as an authorized Article. The UCMJ and the 2008 Edition of the MCM state the offense(s) for Article 112a is wrongful use, possession, etc., of controlled substances and the offense for sodomy is Article 125.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention tht the DA Form 4430 cites Article 125(a) when it should cite Article 112a has merit.
2. Since Article 125(a) is not an authorized Article in the UCMJ, and the evidence of record shows the applicant was convicted of Article 112a (wrongful use, possession, etc., of controlled substances), his DA Form 4430 should be corrected to show Article 112a in item 3.
BOARD VOTE:
__X_____ ___X____ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 3 of the DA Form 4430 to show Article 112a in the ART/UCMJ section.
__________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) AR20100012002
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100012002
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2007 | 20070014202
On 31 December 1985, the United States Army Court of Military Review affirmed the findings and sentence. The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses. It is noted that if the applicant was found guilty of the charged offenses today, and was convicted at a trial by court-martial, the maximum sentence that may be imposed for a single violation of Article 112a, would be a dishonorable discharge, forfeiture of all pay and allowances,...
ARMY | BCMR | CY2013 | 20130009952
d. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The applicant contends that his BCD should be changed to an administrative discharge and the character of his service should be upgraded because he had many years of prior honorable service, members of his former chain of command supported an...
ARMY | BCMR | CY2014 | 20140016096
I understand that if I have less than 6 years of total active and reserve military service at the time of initiation of recommendation for separation, I am not entitled to have my case heard by an administrative separation board unless I am being considered [for a characterization of discharge] under other than honorable conditions." c. The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could make application to...
ARMY | BCMR | CY2004 | 20040009324C070208
The applicant requests, in effect, that the Army change the "code" it provided to the Federal Bureau of Investigation (FBI) to delete the reference to distribution of a controlled substance. Although the Article 15 referred to by the applicant is not available, records at the CID's CRC reveal that she was the subject in a CID ROI for wrongful use and possession of cocaine. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected...
ARMY | BCMR | CY2010 | 20100024196
Item 3 (Summary of offenses, pleas, and findings) of a DA Form 4430-R, dated 3 April 1991, shows the applicant was charged with the offense of conduct unbecoming an officer by engaging in conversations and discussions to commit murder, in violation of Article 133 of the Uniform Code of Military Justice (UCMJ). The letter noted a DA Form 4833 (Commanders Report of Disciplinary or Administrative Act ) reflected that he underwent a general court-martial and was found guilty of conduct...
ARMY | BCMR | CY2011 | 20110014593
The applicant requests award of the Combat Action Badge (CAB) and restoration of his rank/grade to specialist four (SP4)/E-4. Army Regulation 27-10 (Military Justice) states that commanders may impose nonjudicial punishment for the administration of discipline under the provisions of Article 15 of the UCMJ. _______ _ _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.
USMC | DRB | 2014_Marine | MD1400977
ADDENDUM: Information for the Applicant Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. ” Additional Reviews : After a document review has been...
USMC | DRB | 2014_Marine | MD1401468
DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall remainUNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remainMISCONDUCTThe Applicant remains eligible for a...
ARMY | BCMR | CY2007 | 20070016258
The applicant requests removal of a negative DA Form 1059 (Service School Academic Evaluation Report) from her Official Military Personnel File (OMPF). Table 2-1 of AR 600-8-104 states that the DA Form 1059 will be filed in the performance section of the OMPF. This DA Form 1059, dated 1 August 2001, is also filed in her P fiche.
ARMY | BCMR | CY2006 | 20060002532C070205
The applicant submitted a U.S. Army Criminal Investigation Command (CIC) letter, dated 5 August 2005, responding to her request for release of information. The CID Report of Investigation indicated that the applicant was being investigated for wrongful use of hallucinogens. The applicant submitted a CID Report of Investigation 0065-01-CID137- XXXX0, dated 11 July 2001.