IN THE CASE OF:	  

		BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120022671 


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 transfer of his court-martial proceedings from the performance to the restricted section of his Army Military Human Resource Record (AMHRR).

2.  The applicant states:

	a.  Army Regulation 600-37 (Unfavorable Information) allows the transfer when the court-martial proceedings have served the intended purpose, have been in the files for at least 3 years since the imposition, the Soldier is at least a staff sergeant (SSG), and the Soldier has received at least one Noncommissioned Officer Evaluation Report (NCOER) since the filling of the proceedings.

	b.  The court-martial proceedings have served the intended purpose because they showed the consequences of his actions and also forced him to learn how to follow direct orders.

	c.  He has been an outstanding leader with a professional work ethic and he has potential as a senior NCO.  He performed highly during numerous field artillery operations where he served as the battalion's master gunner, personal security detail, platoon sergeant, and other important missions.  He supported his subordinates while achieving superior results.

	d.  He received high praise from the battalion commander and from the command sergeant major for establishing a certification program for two howitzer firing systems.

	e.  He organized the Equal Opportunity (EO) Program for his battalion during their activation and he served as the battalion's EO Leader and Unit Victim Advocate for 3 years.

3.  The applicant provides:

* two third-party statements of support
* four NCOERs
* three Army Commendation Medal (ARCOM) certificates
* Special Court-Martial Order Number 35, issued by Headquarters, U.S. Army Fires Center of Excellence, Fort Sill, OK, dated 6 May 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank/grade of staff sergeant (SSG)/E-6.

2.  On 25 March 2009, while serving in the rank/grade of sergeant first class (SFC)/E-7, he was found guilty by a special court-martial of:

	a.  Violating a lawful general regulation by wrongfully selling tobacco products and candy to initial entry training (IET) Soldiers.

	b.  Maltreating IET Soldiers who were subject to his orders by requiring them to sell contraband items to other IET Soldiers.

	c.  Wrongfully soliciting IET Soldiers to disobey a lawful general regulation by selling tobacco products and other contraband (candy) to other IET Soldiers.

3.  He was sentenced to be reduced to SSG/E-6.  As a result, he was effectively reduced on 25 March 2009.

4.  A review of his AMHRR reveals the court-martial order is filed in the performance section of his AMHRR.

5.  He provides two third-party statements of support, written by his battalion commander and his battalion executive officer.  They attest to his outstanding 

performance following the court-martial conviction and support the transfer of the court-martial order to the restricted section of his AMHRR.

6.  He provides four NCOERs that show his overall potential for promotion and/or service in positions of greater responsibility was rated as "among the best" from 1 May 2009 through 10 November 2012.  He also provides three ARCOM certificates that indicate he has been awarded three ARCOMs since his court-martial conviction.

7.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual AMHRR's; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual AMHRR's; and ensure that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from AMHRR's.  It states unfavorable information that should be filed in the AMHRR includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	a.  The regulation provides that records of court-martial and court-martial orders may be filed in the performance folder of the AMHRR without further referral to the recipient.

	b.  Once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

	c.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

	d.  This does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders.

8.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR and provides 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 Army Board for Correction of Military Records or the Department of the Army Suitability Evaluation Board.

   a.  Table B-1 (Authorized Documents) of the regulation provides that court-martial orders (general, special, summary) will be filed in the performance section when there is an approved finding of guilty on at least one specification.  

	b.  The restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or Headquarters, Department of the Army, selection board proponent.  This regulation also provides that documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that a court-martial order currently filed in the performance section of his AMHRR should be transferred to the restricted section of his AMHRR has been carefully considered.

2.  The evidence of record confirms he was found guilty by a special court-martial of at least one specification.  Therefore, in accordance with the governing regulation, the court-martial order was properly filed in the performance section of his AMHRR.

3.  He contends that the court-martial order should be transferred to the restricted section of his AMHHR based on having served its intended purpose.  However, this provision of Army Regulation 600-37 pertains to letters of reprimand, admonition, or censure and not to court-martial related documents.

4.  His positive service after the court-martial conviction and the third-party letters of support were noted; however, he has not provided any evidence or argument to show the court-martial documentation is untrue or unjust or that it was improperly filed in the performance folder of his AMHRR.

5.  In view of the foregoing, there is no basis for granting the applicant's 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.

ABCMR Record of Proceedings (cont)                                         AR20120022671



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ABCMR Record of Proceedings (cont)                                         AR20120022671



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