IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120011864 


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 his court-martial record:

* be removed from his Official Military Personnel Record (OMPF), or
* be transferred from his performance (P) fiche to his Restricted (R) fiche

2.  The applicant states as a young specialist (SPC/E-4) he made a poor choice on 23 October 2003 that cost the life of a friend and fellow Soldier.  He was returning to his unit at Fort Bragg, NC when, due to excessive speed, he had a motor vehicle accident.  His friend, who was not wearing a seatbelt, was ejected from the car and died.  The applicant was tried by a general court-martial and convicted of negligent homicide and reckless conduct.  He was sentenced to hard labor without confinement for 30 days, forfeiture of $1,495.00 pay per month for 2 months, and reduction from SPC to private first class (PFC/E-3).

3.  The applicant further states in the 9 years since the tragic death of his friend and fellow Soldier he has dedicated his life to being a good Soldier.  He is a staff sergeant (SSG/E-6) and he was:

* deployed to Iraq three times
* deployed  in support of recovery efforts after Hurricane Katrina
* earned an Expert Infantryman Badge
* received the Forces Command (FORSCOM) General Aubrey S. Newman Leadership Award
* awarded a Meritorious Service Medal
* selected as the Personal Security Officer (PSO) for two Commanding Generals (CGs) of the 3rd Infantry Division
* selected to attend Ranger School

4.  The applicant provides:

* a typewritten, three-page letter
* memorandum from former CG, 3rd Infantry Division
* memorandum from Assistant Chief of Staff, G3, 3rd Infantry Division
* memorandum from Battalion Operations Officer
* memorandum from former aide-de-camp to CG, 3rd Infantry Division
* memorandum from captain, Infantry
* memorandum from captain, Quartermaster Corps
* memorandum from captain, Signal Corps
* memorandum from captain, Military Police Corps
* memorandum from first sergeant
* memorandum from retired major
* memorandum from chief, youth services branch
* memorandum from director, choral music, E.E. Smith High School
* memorandum from school liaison officer
* memorandum from former 8th grade teacher
* memorandum from former teacher and wrestling coach
* memorandum from school age site director
* memorandum from coordinator, child development
* five reference forms
* memorandum from former National Guard first sergeant

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) SSG with a date of rank (DOR) of 1 May 2008.

2.  The applicant was born on 6 October 1982.  He enlisted in the Georgia Army National Guard for 8 years on 15 February 2002.  His unit was mobilized and he was ordered to active duty on 1 October 2003.  On 23 October 2003, he was driving a privately-owned vehicle and returning to his unit when he was involved in a motor vehicle accident caused by excessive speed.  A friend and fellow Soldier was killed in the accident.

3.  The applicant was charged with negligent homicide and tried by a general court-martial.  On 10 June 2004, he was adjudged guilty of negligent homicide in violation of Article 134, Uniform Code of Military Justice (UCMJ), and reckless conduct in violation of Article 134, UCMJ.  He was sentenced to perform hard labor without confinement for 30 days, to forfeit $1,495.00 pay per month for 2 months, and to be reduced to PFC.  On 26 June 2004, he was deployed to Iraq and remained there until 28 December 2004.

4.  On 25 May 2005, the applicant was discharged from the Georgia Army National Guard for immediate enlistment in the RA.  During his combined service, he has:

* had 3 deployments to Iraq
* been deployed in support of Hurricane Katrina relief efforts
* received the prestigious Major General Aubrey S. Newman Leadership Award
* been selected by two CGs of the 3rd Infantry Division to serve as PSO and Non-Commissioned Officer-in-Charge of the CG's Personal Security Detail
* been awarded the:

* Meritorious Service Medal
* two Army Commendation Medals
* three Army Achievement Medals
* two Army Good Conduct Medals
* the Combat Infantryman Badge
* the Expert Infantryman Badge

5.  The applicant submitted a letter from the former CG, 3rd Infantry Division.  He strongly recommends moving the applicant's court-martial record from his P-fiche to his R-fiche.  He explains how the applicant accepted full responsibility for his error in judgment in October 2003, and how he used the "emotional scar" to motivate himself to maintain the highest standards of behavior and performance, both on and off duty.  The general opines it makes no sense to continue to penalize an outstanding NCO whom he would promote to sergeant first class (SFC/E-7) immediately if he could.  He concludes that in his "…33 years of Soldiering, which includes command of two companies, a deployed battalion task force, a Brigade Combat Team, and a Division in combat…" he can tell when a Soldier is truly committed and has applied a negative past experience to make himself better.  The applicant has done that.  He concludes he would give the applicant an infantry platoon destined for combat and, if that platoon included the general's son, he would know his son would be well-cared for.

6.  All of the other support documents submitted by the applicant contain similarly glowing assessments of his character and abilities.

7.  Army Regulation 600-8-104 prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  Table 2-1 describes the composition of the OMPF and states:

Court-martial orders: File on the P fiche when there is an approved finding of guilty on at least one specification.  Also file supplemental orders.  If all approved findings are not guilty, file the order on the R fiche.  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 P fiche.  Then transfer them to the R fiche.

8.  Army Regulation 600-37 (Unfavorable Information) states once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Normally, consideration of appeals is restricted to grades E6 and above, to officers, and to warrant officers.  Although any Soldier may appeal the inclusion of a document placed in his or her file under this regulation, the appeals of Soldiers in grades below E-6 will only be considered as an exception to policy.  This does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of a record of trial by court-martial from his OMPF, or transfer of that record from his P-fiche to his R-fiche.

2.  The applicant was convicted by a general court-martial of negligent homicide and reckless conduct in the accidental death of a fellow Soldier.  His sentence included hard labor, forfeiture, and a one grade reduction; it did not include a 


discharge.  It would appear the intent of the punishment was to correct behavior, not to end the applicant's career.

3.  The applicant's court-martial conviction is a permanent and irrevocable part of his OMPF; it should not be removed.  However, an argument may be made for its transfer to the R-fiche.

4.  The applicant has clearly shown that he has overcome the effects of the unfortunate incident of October 2003.  He has Soldiered past it and has excelled in his career.  He has performed three combat tours in Iraq, earned a Combat Infantryman Badge and Expert Infantryman Badge, and was awarded FORSCOM's General Aubrey S. Newman Leadership Award.  Additionally, he has been chosen to serve not one, but two general officers as PSO and Security Detachment NCOIC.

5.  Given his outstanding performance since 2003 and his potential for future service, it would be appropriate to transfer his court-martial record from his P-fiche to his R-fiche.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring General Court-Martial Order Number 24, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, dated 1 December 2004, from his P-fiche to his R-fiche on his OMPF.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the application that pertains to removing the court-martial order altogether from his OMPF.



      _______ _   _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)                                         AR20120011864





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ABCMR Record of Proceedings (cont)                                         AR20120011864



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