BOARD DATE: 29 March 2012
DOCKET NUMBER: AR20120003083
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 a general court-martial order be removed from his official military personnel file (OMPF).
2. The applicant states he was found guilty by a general court-martial of making a false official statement. Article 46 of the Uniform Code of Military Justice provides that defense and government should have equal opportunity to obtain witnesses. The U.S. Court of Appeals for the Armed Forces held that service members are entitled to expert assistance when necessary for an adequate defense but he was denied this assistance. The deoxyribonucleic acid (DNA) results provided by the U.S. Army Criminal Investigation Laboratory contained errors and do not match his rank and name. The prosecution team denied his request for a retest or an independent testing of DNA and he was denied the opportunity to have an independent investigator.
3. The applicant provides his Enlisted Record Brief, two letters, and four memoranda.
CONSIDERATION OF EVIDENCE:
1. The applicant is a Regular Army (RA) SSG who enlisted in the RA on 15 February 2000 and subsequently executed several reenlistments. He holds military occupational specialty 92A (Automated Logistical Specialist) and was promoted to SSG on 15 August 2006.
2. The performance section of his OMPF contains General Court-Martial Order Number 13, dated 12 July 2010, issued by Seventh U.S. Army Joint Multinational Training Command, Germany, wherein it shows:
* He was found guilty at a general court-martial in Germany of one specification of making a false official statement on 13 February 2009 that he did not have sexual intercourse with Ms. ITS
* He was found not guilty of one specification of engaging in sexual intercourse with Ms. ITS on 1 February 2009 while she was incapacitated and incapable of communicating unwillingness to engage in the sexual act
* A specification that he committed sodomy with Ms. ITS on 1 February 2009 by force and without consent was dismissed
* He was sentenced to be reprimanded, forfeit $500.00 pay per month for 18 months, 60 day restriction, and 60 days of hard labor without confinement
* The sentence was adjudged on 4 March 2010
* The sentence was approved on 12 July 2010 and he was reprimanded for making a false official statement while under investigation by military law enforcement officials
3. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF. Chapter 2 of this Army regulation provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Table 2-1 (Composition of the OMPF) of this regulation shows that:
* Court-martial orders are filed in the performance section when there is an approved finding of guilty on at least one specification
* If all approved findings are not guilty then file in the restricted section of the OMPF
* If all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, remove all related orders from the performance section of the OMPF and transfer to the restricted section
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged. His conviction and sentence were effected in accordance with applicable law and regulations. He received the court-martial for making a false official statement while under investigation by military law enforcement officials. As required by the applicable regulation, the court-martial was filed in the performance section of his OMPF.
2. The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file.
3. The general-court martial order the applicant received is properly filed in his OMPF in accordance with applicable regulations. Therefore, he is not entitled to the 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.
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