IN THE CASE OF:	  

		BOARD DATE:	    25 October 2011

		DOCKET NUMBER:  AR20110017869 


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 removal of Special Court-Martial (SPCM) Order Number 4, dated 12 March 2009, from the restricted section of his Official Military Personnel File (OMPF).

2.  He states he was found not guilty on all charges.  

3.  He provides:

* A copy of his driver license and military identification card
* His Enlisted Record Brief (ERB)
* A criminal history report
* Various course completion documents
* Several award certificates

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the Regular Army on 9 June 2005.  He is currently serving on active duty as a staff sergeant/E-6 in military occupational specialty 92A (Automated Logistics Specialist).

2.  SPCM Order Number 4, dated 12 March 2009, is filed in the restricted section of the applicant's OMPF.  This document shows an SPCM convened for offenses 


which were stated to have occurred between 15 July and 22 August 2008.  The applicant was found not guilty of the charges and specifications as follows:

	a.  Charge I: Conspire with another individual to distribute a controlled substance.

	b.  Charge II: Specification One - wrongfully distribute a controlled substance on various occasions and Specification Two – wrongfully possess a controlled substance with the intent to distribute.  

3.  The order also shows that all rights, privileges, and property of which the applicant may have been deprived of by virtue of the proceedings would be restored. 

4.  The applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of SPCM Order Number 4, dated 12 March 2009, from the restricted section of his OMPF and his request was returned without action because the DASEB does not have the authority to remove a court-martial order from the OMPF.  The DASEB recommended that the applicant petition the Army Board for Correction of Military Records (ABCMR) for relief.  This request shows he stated that his involvement in the SPCM was the result of a Criminal Investigation Command (CID) informant's motivation to absolve him of a crime.  The informant was offered a reduced punishment and immunity if he provided a name and testified against that person in court.  The applicant's name was unjustly provided.  

5.  The applicant also stated that he was a victim of identity theft in 2004 and a faulty background check.  Because his record was tainted with criminal charges which he did not commit, he was a visible target for law enforcement.  He has been fully punished for offenses he was not involved in.  He went before an SPCM and was found not guilty of all charges.   

6.  The applicant provided a copy of a criminal history report from a California court.  This document shows the applicant was a victim of identity theft; therefore the state moved for a dismissal of all charges pertaining to operating a vehicle while intoxicated and without a license.  Verification from the Department of Defense (DOD) confirmed the identity did not match that of the applicant.  The arrest occurred on 7 August 2004.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  


This document states that only those documents listed in Table 2-1 and Table
2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.

8.  Table 2-1 of Army Regulation 600-8-104 shows that approved requests for the release of documents in the restricted section of the OMPF will be filed in the restricted section of the OMPF.  This document also provides with respect to court-martial orders, in pertinent part, if all approved findings are not guilty, the order is filed in the restricted section of the OMPF.

9.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 states that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command (i.e., for enlisted Soldiers, formerly designated as Headquarters, U.S. Army Enlisted Records and Evaluation Center) or the Headquarters, Department of the Army (HQDA) selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interest of the Soldier and the Army.

10.  Paragraph 2-6 (Release of restricted data filed in the OMPF) of this regulation provides strict guidelines on the release of information filed in the restricted section of the OMPF and limits it to those government agencies specifically identified in the paragraph.  This paragraph shows that restricted data will not be given to any other person or agency, without the approval of the Commanding General, U.S. Army Human Resources Command or HQDA selection board proponent.  This regulatory provision also states that "the following disciplinary information will not be provided to these boards:  any court-martial order where all findings were not guilty; or all charges or specifications were dismissed; or all findings of guilty were reversed in a supplemental order; or the order was transferred to the restricted fiche (section) by the ABCMR to correct an error or to remove an injustice."

DISCUSSION AND CONCLUSIONS:

1.  The evidence provided by the applicant shows he was the victim of identity theft and that those charges which were preferred against him by a court in the State of California were all dismissed.  
2.  The evidence of record shows charges were preferred against him and he appeared before an SPCM.  He was found not guilty and all rights, privileges, and property were restored to him as a result.    

3.  The regulatory guidance states a court-martial order in which all approved findings were not guilty will be filed in the restricted section of the OMPF.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant has not provided sufficient evidence to show this order is untrue or unjust in this case.  

4.  While the applicant was found not guilty of all the court-martial charges, for historical purposes, the Army has an interest in maintaining the integrity of its records.  The information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In this case the court-martial order reflects the disposition of the charges preferred against the applicant.  Without this order, it could be falsely assumed that he was never tried for the charges.

5.  While the Board understands the applicant's desire to have the court-martial order removed, it finds no basis for compromising the integrity of the Army's records.

6.  Therefore, SPCM Order Number 4, dated 12 March 2009, is properly filed in his OMPF and should not be removed.

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)                                         AR20110017869



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ABCMR Record of Proceedings (cont)                                         AR20110017869



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