IN THE CASE OF:
BOARD DATE: 29 September 2011
DOCKET NUMBER: AR20110009428
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 DD Form 2329 (Record of Trial by Summary Court-Martial) showing his conviction by summary court-martial on 30 October 2001 be moved to the restricted section of his official military personnel file (OMPF).
2. The applicant states the reprimand has served its intended purpose and has been in his OMPF for at least 1 year since its imposition. He states he has met all of the requirements of Army Regulation 600-37 (Unfavorable Information).
3. The applicant provides no additional evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. On 17 July 2007, the applicant reenlisted in the Regular Army for an indefinite period. He previously served 10 years and 1 day of creditable active service. He is currently serving in the rank/grade of staff sergeant (SSG)/E-6.
2. On 18 October 2001, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for unlawful assault on a female by grabbing and twisting her arm.
3. On 30 October 2001, he pled not guilty but was found guilty of all charges and specifications by a summary court-martial of:
* oral sodomy
* adultery
* false swearing
The DD Form 2329 is filed in the performance section of his OMPF.
4. He was promoted to sergeant (SGT)/E-5 on 1 May 2004 and to SSG on
1 September 2005.
5. On 15 June 2006, he accepted NJP for wrongfully appropriating cash and merchandise, of a value of over $500, through the improper use of his government credit card.
6. DA Forms 2166-8 (NCO (Noncommissioned Officer) Evaluation Report) covering the period May 2004 through February 2010 show his overall performance was rated successful and his overall potential for promotion was rated as superior by his senior raters.
7. Army Regulation 600-37, paragraph 7-2b, states once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. This does not include documents that have their own regulatory appeal authority, such as evaluation reports and court-martial orders.
8. Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF. Table 2-1 of the regulation states the DD Form 2329 will be filed in the performance section of the OMPF when a finding of guilty is given on at least one specification.
DISCUSSION AND CONCLUSIONS:
1. The provisions of Army Regulation 600-37 do not apply to court-martial orders.
2. He accepted NJP on two occasions, one before and one after his summary court-martial.
3. The DD Form 2329 is properly filed in the performance section of his OMPF in accordance with the governing regulation. There is no evidence his conviction or sentence was improper.
4. The acts which led to his summary court-martial are extremely serious offenses. Therefore, it is only equitable that they remain in the performance section of his OMPF so his records may be fairly compared to other Soldiers of his peer group during promotion and other selection boards.
5. In view of the foregoing, there is no basis for granting his 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) AR20110009428
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