BOARD DATE: 8 November 2011
DOCKET NUMBER: AR20110019781
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 Order Number 9, dated 2 October 2000, from his official military personnel file (OMPF).
2. The applicant states the charges for which the court-martial order was issued were withdrawn by the convening authority and the proceedings were terminated on 14 August 2000 because the charges and specifications were withdrawn and dismissed. However, the court-martial order was filed in his OMPF and has caused him to be disqualified for assignment as a drill sergeant or recruiter or to be considered for appointment as a warrant officer. Additionally, it has contributed to his being passed over for promotion to pay grade E-7.
3. The applicant provides a two-page letter explaining his application and a copy of an index of documents contained in his OMPF.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 23 April 1998 for a period of 3 years. He completed training as a cargo specialist at Fort Eustis, Virginia, and has remained on active duty through a series of continuous reenlistments. He was promoted to pay grade E-6 on 1 September 2008.
2. The special court-martial order in question is filed in the applicant's restricted section of his OMPF. The court-martial order indicates that after the applicant was arraigned, the proceedings were terminated on 14 August 2000 because the charges and specifications were withdrawn and dismissed.
3. Army Regulation 600-8-104 (Military Personnel Information Management/
Records) serves as the authority for filing of documents in the OMPF. It states that when there is an approved finding of guilty on at least one specification, the court-martial order will be filed in the performance section of the OMPF. If all charges and specifications are dismissed or if all charges and approved findings are not guilty, the court-martial order will be filed in the restricted section of the OMPF.
4. Army Regulation 600-8-104 also provides that the restricted section is used for historical data that may normally be improper for viewing by selection boards or career managers. Documents in this section are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, corrections to other parts of the OMPF, record investigation reports, record appellate actions and to protect the interest of the Soldier and the Army. The release of information in this section is controlled and will not be released without written approval from the Commanding General, U.S. Army Human Resources Command, or the Department of the Army selection board proponent.
DISCUSSION AND CONCLUSIONS:
1. The court-martial order appears to be properly filed in the restricted section of the applicant's OMPF in accordance with the applicable regulation.
2. The applicant's contention that the presence of the court-martial order hinders his professional development appears to lack merit at least as far as his promotion is concerned. Access to the order by career managers and promotion selection boards is restricted unless approved by the appropriate authority.
3. The applicant's contentions have been noted; however, the government has an interest in maintaining such records and the applicant has not shown through the evidence submitted with his application or the evidence of record why the court-martial order should not remain a matter of record.
4. In the absence of sufficient evidence to show an error or injustice exists in his case, there appears to be no basis to grant 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 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.
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