DOCKET NUMBER: AR20100026323
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 the removal of a summary court-martial and felony conviction from his military personnel records jacket (MPRJ).
2. The applicant states, in effect, in December 1970 he was drafted into the U.S. Army. In February 1971, he made the mistake of having marijuana in his possession. He was charged and pled guilty at a summary court-martial. This resulted in a felony conviction on his record. Prior to or since that incident he has had no arrest or conviction of any kind. He completed his military obligation, attained the rank/grade of specialist four (SP4)/E-4 and received an honorable discharge. He was hired into the U.S. Postal Service and after 34 years of dedicated service he retired in 2007. He made the mistake as a young man and it has haunted him all of his adult life.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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's records show he was inducted into the Army of the United States on 4 December 1970 and he held military occupational specialty 11C (Infantry Indirect Fire Crewman).
3. On 16 December 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order by gambling in the billets.
4. On 10 March 1971, he was found guilty by a summary court-martial of one specification of wrongfully possessing one ounce or less of marijuana.
5. On 2 October 1972, he received NJP under the provisions of Article 15, UCMJ, for violating a lawful regulation by failing to maintain the haircut standard.
6. On 24 November 1972, he was honorably released from active duty and he was transferred to the U.S. Army Reserve Control Group to complete his remaining Reserve obligation. He completed 1 year, 11 months, and 21 days of active service and he was awarded the National Defense Service Medal.
7. Army Regulation 640-10 (Military Personnel Records Jacket, United States Army), in effect at the time, provides instructions for the initiation, maintenance, forwarding, and disposition of the MPRJ. This regulation states, in pertinent part, all persons concerned with the maintenance and transmittal of personnel records will be cautioned that alteration, damage, or loss of such records may be punishable under the provisions of the UCMJ. Permanent documents filed pursuant to regulatory requirements will be preserved during and after an individual's military service and will not be removed unless authorized herein or by other pertinent regulations.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his summary court-martial and felony conviction should be removed from his MPRJ.
2. Summary court-martials are used for efficient disposition of minor offenses. Summary court-martials are not criminal prosecutions within the meaning of the Sixth Amendment to the United States Constitution. The military justice system does not use the term "felony" or "misdemeanor." However, since a summary court-martial is used for disposition of minor offenses and can only impose confinement for 1 month, punishment imposed by a summary court-martial is not considered equivalent to a criminal or "felony" conviction.
3. The purpose of maintaining the MPRJ is to protect the interests of both the U.S. Army and the Soldier. In this regard, the MPRJ 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 MPRJ. Once placed in the MPRJ, the document becomes a permanent part of that file and will not be removed from the MPRJ unless directed by an appropriate authority.
4. 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. As required by the applicable regulation, the summary court-martial order is properly filed in the applicant's MPRJ. There does not appear to be an error or an injustice. 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) AR20100026323
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ABCMR Record of Proceedings (cont) AR20100026323
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