IN THE CASE OF:
BOARD DATE: 26 April 2012
DOCKET NUMBER: AR20120006741
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 his summary court-martial from his official military personnel file (OMPF) or transfer to the restricted section of his OMPF.
2. The applicant states:
a. He believes the record is unjust because the events were not as stated. Since the imposition of the administrative measures that were taken, a total of 56 months has elapsed. During that time, he has accepted and served his punishment with a positive attitude while working toward getting his career back on track and serving in the Army with honor and dignity. As his evaluations indicate, his performance has been progressive and consistent as his level of responsibility has increased.
b. He wants the opportunity to continue to faithfully and selflessly serve our Soldiers and the Army because he knows he has much to offer this great organization. Moving this record from the performance section of his OMPF to the restricted section affords him that opportunity.
3. The applicant provides two statements of support.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he enlisted in the Regular Army on 20 May 1997 and he holds military occupational specialty 92F (Petroleum Supply Specialist). He was promoted to the rank of staff sergeant (SSG) on 1 May 2004.
2. He was assigned to Company A, 115th Brigade Support Battalion, 1st Brigade Combat Team, Camp Taji, Iraq.
3. The performance section of his OMPF contains a DD Form 458 (Charge Sheet), dated 15 February 2007, and DD Form 2329 (Record of Trial by Summary Court-Martial), dated 3 May 2007, wherein they show he was:
* found guilty by a summary court-martial in Iraq of one specification of disobeying a commissioned officer
* found guilty of two specifications of disobeying lawful orders
* found guilty of one specification of soliciting another Soldier to commit an indecent act
* found not guilty of two specifications of using indecent language
* sentenced to reduction in rank/grade to sergeant (SGT)/E-5
4. On 3 May 2007, the convening authority approved the sentence and ordered it executed. The applicant was subsequently reduced to the rank of SGT.
5. A legal review of the summary court-martial, dated 25 May 2007, found the sentence imposed and the record of trial to be legally sufficient.
6. On 1 December 2008, the applicant was again promoted to the rank of SSG. He is assigned to the 615th Aviation Support Battalion, 1st Air Calvary Brigade, Fort Hood, TX.
7. The applicant provides two statements, dated 25 and 26 December 2011, wherein his battalion commander and command sergeant major stated the applicant is a superior noncommissioned officer, a total professional with outstanding leadership skills, and a valuable asset to the unit and the Army.
8. 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 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) shows:
* records of trial by summary court-martial are filed in the performance section when there is an approved finding of guilty on at least one specification
* this form will be filed together with the charge sheet and letter of legal review
* 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 action, remove all related documents 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 summary court-martial was warranted by the nature of the offenses charged. His conviction and sentence were effected in accordance with applicable law and regulations. 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 summary 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 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) AR20120006741
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