IN THE CASE OF:
BOARD DATE: 14 February 2012
DOCKET NUMBER: AR20110015301
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 transfer of a special court-martial (SPCM) order to the restricted portion of his official military personnel file (OMPF).
2. The applicant states:
a. Two charges on his SPCM order have different findings.
b. His positive actions following the court-martial conviction notes successful rehabilitation.
c. He has since been promoted to the rank of sergeant first class (SFC), deployed to Iraq 14 months as a gun-truck platoon leader, awarded the Bronze Star Medal (BSM) and Meritorious Service Medal (MSM), graduated from the Senior Leaders Course for his military occupational specialty (MOS), and positively changed his life.
d. Maintaining the SPCM order in his OMPF hinders his career advancement as he has been denied recommendation for promotion by selection boards twice.
e. He wants the opportunity to display his leadership potential in higher positions without the stigma of the court-martial conviction causing him a disadvantage.
3. The applicant provides:
* Self-authored statement
* Enlisted Record Brief (ERB)
* SPCM Order
* Three Noncommissioned Officer Evaluation Reports
CONSIDERATION OF EVIDENCE:
1. At the time of his application, he was serving on active duty as a Regular Army (RA) Soldier in the rank of sergeant first class/E-7. He currently serves in MOS 13B (Cannon Crewman).
2. His OMPF contains SPCM Order Number 16, dated 9 May 2008. It shows he was charged with violating the following Articles of the Uniform Code of Military Justice (UCMJ) and found guilty or not guilty as indicated:
* Charge I, Article III (operating a vehicle while drunk) - not guilty
* Charge II, Article 134 (possessing an open alcoholic beverage container while controlling a vehicle) - guilty
3. Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides the following.
a. All personnel information recorded under the authority of this regulation is the property of the U.S. Government. Once recorded, it will not be removed except as provided by law or this regulation. Once placed in the OMPF, the document becomes a permanent part of that file.
b. The document will not be removed from a section or moved to another part of the OMPF unless directed by one or more of the following: (1) Army Board for Correction of Military Records; (2) Department of the Army Suitability Evaluation Board; (3) Army Appeal Boards; (4) Chief, Appeals and Corrections Branch, U.S. Army Human Resources Command (5) OMPF custodian when documents have been improperly filed; (6) Commander, U.S. Army Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, U.S. Army Human Resources Command, St. Louis, Missouri; or (8) Chief, Appeals Branch, Army National Guard Personnel Center.
c. Chapter 2 contains guidance on the OMPF. Table 2-1 outlines the composition of the OMPF and states in regard to court-martial orders:
(1) file in the performance portion of the OMPF when there is an approved finding of guilty on at least one specification with all supplemental actions;
(2) if all approved findings are not guilty, file in the restricted portion of the OMPF with all supplemental actions; and
(3) if all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental action, remove all related documents and transfer them from the performance to the restricted portion of the OMPF.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his SPCM order should be transferred to the restricted portion of his OMPF.
2. The available evidence confirms the applicant was convicted by an SPCM of violating Article 134 of the UCMJ. By regulation, court-martial orders will be filed in the performance portion of the OMPF when there is an approved finding of guilty on at least one specification. Once placed in the OMPF, the document becomes a permanent part of that file. Therefore, his request to move his SPCM order to the restricted section of his OMPF should be denied.
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) AR20110015301
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ABCMR Record of Proceedings (cont) AR20110015301
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