BOARD DATE: 27 August 2013
DOCKET NUMBER: AR20120019432
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 her criminal conviction case from her Army Military Human Resource Record (AMHRR).
2. She states the matter was not a criminal conviction under New Jersey State Law. It also wasn't a felony or a misdemeanor under New Jersey State Law. Instead, the matter was a disorderly persons offense pursuant to Title 2C, New Jersey Code of Criminal Justice, section 2C:33-4 (Harassment). In New Jersey, "a petty disorderly persons offense" is not a crime because it carries a maximum penalty of up to 30 days in county jail. On 2 July 2009, the civil court documents were entered into the interactive Personnel Electronic Records Management System (iPERMS), a year after she retired in March 2008. On or about 1 January 2011, she discovered that the matter was erroneously entered into iPERMS. She had no reason to discover this sooner because she retired in 2008.
3. She provides:
* Title 2C, New Jersey Code of Criminal Justice, section 2C:33-4
* Title 2C, New Jersey Code of Criminal Justice, section 2C:1-4 (Classes of Offenses)
* two U.S. District Court of New Jersey Judgments
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After having prior enlisted service in the Regular Army and the Army National Guard (ARNG), the applicant was appointed as a Reserve commissioned officer on 31 May 1988 in the rank of second lieutenant. On 2 June 1988, she was appointed in the ARNG and granted Federal recognition.
3. She was separated from the ARNG on 1 August 1992 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on the following date.
4. She was reappointed in the ARNG on 26 September 1995 in the rank of captain in the Judge Advocate Generals Corps. She was granted Federal recognition.
5. She was promoted to major with an effective date and date of rank of 28 June 2001.
6. She was separated from the ARNG on 7 August 2004 and transferred to the USAR on the following date.
7. She was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 1 December 2005.
8. She provided a judgment from the U.S. District Court of New Jersey, Case Number 07-9061, dated 21 January 2008, showing she was found guilty of
harassment (2 December 2006) by a verdict on 12 July 2007 after a plea of not guilty. She was placed on probation for 2 years and ordered to pay a $500.00 fine.
9. On 6 March 2008, Headquarters, 77th U.S. Army Regional Readiness Command, Fort Totten, NY, published Orders 08-066-00015 reassigning her to the Retired Reserve effective 1 March 2008 by reason of completing 20 or more years of qualifying service for retired pay at age 60.
10. She provided a second judgment from the U.S. District Court of New Jersey, Case Number 07-9061 (PS), dated 16 April 2009, showing she admitted guilt to violating mental health treatment. It was ordered and adjudged that the previously-imposed term of probation was revoked and she was committed to the custody of the U.S. Bureau of Prisons for a term of time served.
11. A review of her personnel records in iPERMS revealed that both of the civil judgments were filed in the performance folder of her AMHRR.
12. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR and Army Personnel Qualification Records. It states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the ABCMR, among other agencies.
DISCUSSION AND CONCLUSIONS:
1. The applicant received two judgments in a criminal case on 21 January 2008 and 16 April 2009 for harassment and violating mental health treatment.
2. The evidence of record shows these documents were filed in the applicant's performance folder of her AMHRR in accordance with the governing regulation. Her service record is void of evidence and she has not provided compelling evidence to indicate these documents were improperly filed. The documents may have been filed in her AMHRR after she was transferred to the Retired Reserve, but the conviction (by a U.S. District court, not a state court) occurred while she was still in an active status and the second judgment was related to the first judgment.
3. The evidence presented was insufficient to warrant removal of the criminal conviction case from the performance folder of her AMHRR.
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) AR20120019432
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ABCMR Record of Proceedings (cont) AR20120019432
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