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ARMY | BCMR | CY2010 | 20100012323
Original file (20100012323.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20100012323 


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 that Special Court-Martial Order Number 17, dated 
19 December 2003, be removed from the restricted file of his Official Military Personnel File (OMPF).

2.  The applicant states he maintained the highest standards of military professionalism:

* during and after his court-martial action
* while paying legal fees amounting to more than $5000.00
* enduring humiliation from fellow Soldiers
* while some leaders questioned his integrity
* being physically assaulted by the parent

3.  He states he elected to take a court-martial based on his belief in a legal system whose finding supported his plea that he did not act in any manner to bring a discredit to himself or the Army.  He states the retention of the information in his OMPF creates an injustice and will not allow him to be evaluated by merit.  He states he doesn’t want the information perceived as an adverse reflection on his character or pose an obstacle to his future advancement.






4.  The applicant provides:

* a copy of the Special Court-Martial Order
* copies of his performance evaluation reports spanning the period September 2002 through August 2009
* a copy of his Enlisted Record Brief

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in June 1999.  By September 2002 he was promoted to pay grade E5 and in February 2003 he arrived for duty in Mannheim, Germany.

2.  In December 2003 the applicant was arraigned at a special court-martial convened by the Commander, 21st Theater Support Command for the following offenses:

a. On or about 11 May 2003, conspiring with another Soldier to commit sodomy with two children under the age of 16

b. On or about 11 May 2003, wrongfully enter an apartment building in Mannheim, Germany, on several occasions while no adults were present and engaging in conversation of a sexual nature with a child under the age of 16 with the intent to obtain oral sex.

3.  The applicant pled not guilty to both charges and was found not guilty.  Special Court-Martial Order Number 17, dated 19 December 2003, which announced the findings of the special court-martial, is filed in the restricted file of the applicant’s OMPF.

4.  In July 2006 the applicant was promoted to pay grade E6.  

5.  His performance evaluation reports, rendered for rating periods between September 2002 and August 2009, have all been outstanding reports with the majority of his rating in the "excellence" block.  Since his promotion to pay grade E6 he has consistently been rated among the best by his raters and in the top block for overall performance and potential by his senior raters.  

6.  The evaluation report rendered for the period February 2003 to December 2003 indicated he was successful in all five rating categories, that he was fully capable of serving in positions of greater responsibilities, and his senior rater placed him in the second block for overall performance and potential.

7.  The applicant’s record also indicates he’s served two tours of duty in Iraq and his awards include the following:

* Bronze Star Medal
* Combat Action Badge
* Three awards of the Army Commendation Medal
* Three awards of the Army Achievement Medal
* Three awards of the Army Good Conduct Medal

8.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) states the restricted file (R fiche) must be permanently kept to:

* Maintain an unbroken, historical record of a Soldier’s service, conduct, duty performance, and evaluation periods
* Record investigation reports
* Record appellate action
* Protect the interests of the Soldier and the Army

9.  Army Regulation 600-8-104 also states court-martial orders will be filed in the performance file (P fiche) when there is an approved finding of guilty on at least one specification and on the R fiche if all approved findings are not guilty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s desire to have the court-martial order completely removed from his OMPF is understandable.  However, the order is appropriately filed and its retention is required by regulatory guidance for a variety of reasons, including the protection of the Soldier and the Army.  

2.  The applicant’s belief the retention of the court-martial in his OMPF may adversely impact him at some point in the future does not serve as a basis to remove the properly filed document.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20100012323





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         AR20100012323



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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