IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100016716 


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 his summary court-martial and letter of reprimand be removed or transferred to the restricted portion of his file.

2.  The applicant states it has been over five years since the incidents that led to his summary court-martial and letter of reprimand, he has not had any additional disciplinary actions, and he has been promoted since the incidents.  The applicant states that he walked away from a superior noncommissioned officer (NCO) after she repeatedly used profanity in berating him.  While stationed in Korea regulation changes prohibited Soldiers, under the rank of staff sergeant, to have privately-owned vehicles (POV).  He had purchased the vehicle prior to the change and had been unable to divest himself of it.  Also, his wife still needed to use the car.  He had applied for an exception to policy.

3.  The applicant provides the Record of Trial by Summary Court-Martial with an attached written reprimand.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 February 2000 with three subsequent reenlistments.

2.  On 16 March 2005, while stationed in Korea, a summary court-martial found the applicant guilty of being disrespectful toward a superior NCO and wrongfully owning and operating a POV.
3.  The adjudged sentence was forfeiture of $703.00 pay per month for one month (to be suspended for 30 days), 60 days restriction, and a letter of reprimand.

4.  The court-martial convening authority approved the sentence except he directed that the forfeiture not be suspended.

5.  The applicant was promoted to staff sergeant (E-6) effective 1 June 2007.

6.  Since the summary court-martial the applicant has successfully completed  the following courses:

	a.  on 30 September 2005, Field Sanitation Team Training;

	b.  on 22 June 2006, the Warrior Leader Course;

	c.  on 4 April 2008, the Motor Transport Operator - Basic NCO course; and

	d.  on 4 April 2008, the Modern Army Combatives Program Level 1 Instructor Certification Course.

7.  The applicant's rater evaluated the applicant on his NCO Evaluation Reports (NCOERs) for 2005 and 2006 as fully capable and block 2 with the senior rater evaluating him as superior - block 2.  His evaluations for 2007 through the most current have him marked by his rater as among the best and successful - top block, with the senior rater giving him a superior - block 1.

8.  The statutory authority under which this Board was created (Title 10, U.S. Code, section 1552, as amended) precludes any action by this Board that would disturb the finality of a court-martial conviction.  

9.  Army Regulation 600-37 (Unfavorable Information) states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.  These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions as result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others, should be based on a thorough review of their records.  The ABCMR has the authority to modify a court-martial record by directing the filing of all related documents in the restricted portion of a Soldier's Official Military Personnel File (OMPF), or in cases of an extreme injustice to remove it from the OMPF altogether.
DISCUSSION AND CONCLUSIONS:

1.  The applicant states it has been over five years since the incidents that led to the summary court-martial and letter of reprimand, he has not had any additional disciplinary actions, and he has been promoted since the incidents.  

2.  To remove the summary court-martial and letter of reprimand would again place the applicant on the same footing as other Soldiers who did not commit the same or similar infractions. 

3.  Further, the Board does not have the authority to disturb the finality of a court-martial.  Purging the court-martial from his OMPF would effectively remove the record of the conviction from any further consideration by Army officials.  In the spirit of 10 USC 1552, the ABCMR only exercises the authority to remove a court-martial from the OMPF in the rarest and most extreme situations involving a significant injustice.  This is not one of those cases.  Therefore, it would not be appropriate to purge the record of these items.

4.  Since the court-martial, the applicant has progressed well in his military career and his development as a Soldier.  This is documented by his completion of several advancement courses, promotion to staff sergeant, and the high ratings on his NCOER's.  The continued retention of the documentation related to the court-martial action and letter of reprimand in his performance file will potentially negatively affect the Soldier's future promotion and assignment potential.

5.  Therefore, as a matter of equity, it is appropriate to direct that the summary court-martial and letter of reprimand be moved to the restricted portion of his official records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  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 moving the summary court-martial and letter of reprimand to the restricted portion of his official records.



      _______ _   __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)                                         AR20100016716



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ABCMR Record of Proceedings (cont)                                         AR20100016716



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