BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110004906 


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 record of his general court-martial be expunged from his official military personnel file (OMPF), thereby removing his felony conviction.

2.  He states at the time of his court-martial he was only 19 years old.  He subsequently completed the Military Instruction Course (MIC) at Fort Riley, KS and he returned to active duty.  His enlistment was extended for 1 year and he was awarded an honorable discharge.

3.  He was told his court-martial record would be expunged at that time.  He also states that subsequent to his honorable discharge, he has not had any arrests or convictions.  He is currently in danger of being deported because he is a legal resident alien with a conviction on file.

4.  He provides:

* Various orders
* A DA Form 4187 (Personnel Action)
* A letter of commendation
* A DA Form 1695 (Oath of Extension of Enlistment)
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A DD Form 149 (Application for Correction of Military Record), dated
1 October 1991


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 applicant’s 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 applicant’s 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 September 1988 at the age of 18 years, 5 months, and 27 days.  He completed training and he was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).

3.  Evidence of record shows that on 1 February 1990, pursuant to his plea, he was convicted by a general court-martial of wrongfully possessing 96 user units of lysergic acid diethylamide on 5 December 1989, with intent to distribute.  He was sentenced to a bad conduct discharge (BCD), 15 months confinement, forfeiture of all pay and allowances, and reduction to private (PV1)/E-1.  The sentence was approved and ordered executed except for the portion pertaining to the BCD as shown in General Court-Martial Order Number 11, issued by Headquarters, 1st Cavalry Division, Fort Hood, TX, dated 23 March 1990.

4.  On 30 April 1990, the U.S. Army Court of Military Review denied the applicant’s appeal and affirmed the findings and the sentence as described in General Court-Martial Order Number 11.

5.  On 10 January 1991, his duty status changed from "Confined Military Authority" to "Present for Duty."

6.  General Court-Martial Order Number 137, issued by the U.S. Army Correctional Brigade, Fort Riley, dated 28 March 1991, shows the applicant successfully completed the MIC and he was returned to active duty.  The unexecuted portion of the sentence to a BCD was remitted.

7.  A letter of commendation by the commander of the U.S. Army Correctional Activity, Fort Riley, dated 28 March 1991, shows he successfully completed the MIC and he was selected as "Honor Graduate."


8.  On 28 March 1991, the applicant extended his enlistment by 7 months to meet his service remaining requirement due to confinement.

9.  On 28 March 1992, he was honorably released from active duty (REFRAD) and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He completed
3 years, 1 month, and 29 days of creditable active service with 131 days of time lost.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) shows in Table 2-1 (Composition of the OMPF) that court-martial orders will be filed in the “P” (performance) portion of an individual’s OMPF when there is an approved finding of guilty on at least one specification.  If charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, then all related orders will be transferred from the ”P” portion to the “R” Restricted portion of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant successfully completed the MIC, received an honorable discharge, and had no other arrests or convictions subsequent to his release from active duty, is testament that in spite of the court-martial action he managed to be retained in the Army.

2.  However, one’s ability to overcome such an incident and subsequent accomplishments are not a basis to expunge a properly-executed and filed court-martial action.

3.  Expunging the court-martial order from his OMPF would not remove his felony conviction or a record of his conviction from other sources (e.g., Justice Department files).  In addition, retention of the orders in his OMPF protects the Army's interest by ensuring that a complete record of the facts is maintained.

4.  The court-martial order is properly filed and as such no error or injustice exists.  The actions by the Army in this case were proper, and there is no evidence of error or unjust action.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110004906



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ABCMR Record of Proceedings (cont)                                         AR20110004906



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