IN THE CASE OF:	

		BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130000831 


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 correction of his Army Military Human Resource Record (AMHRR) by removing a summary court-martial.  He also requests restoration of his previous rank/grade to sergeant (SGT)/E-5, effective 20 August 2012.  Furthermore, he wants these two corrections to be reflected on his
DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states there was undue command influence over his court-martial.  The court-martial officer called his commander during the trial proceedings.  He argues there was selective prosecution that targeted him.  Others were pardoned for more serious and actual crimes.  He was denied his right to face his accuser during trial.  The command intentionally discharged the accuser with an honorable discharge even though he had failed the Army Substance Abuse Program (ASAP) program 2 weeks prior to the start of his trial.  This prevented him from testifying on the applicant's behalf.  He further argues that all allegations against him started after he requested assistance from his Congressman.  He needs these corrections made so that he can get a decent job to support his wife and child.

3.  The applicant provides copies of:

* His DA Form 2823 (Sworn Statement), dated 27 February 2012
* A DA Form 2823 from Private First Class (PFC)/E-3 J----- J. T-----, dated 27 February 2012


* A DA Form 2823 from Private (PV2)/E-2 B------ D. L--, dated 2 May 2012 and 7 June 2012
* A DD Form 458 (Charge Sheet), dated 30 July 2012
* A DA Form 5111 (Summary Court-Martial Rights Notification/Waiver Statement), dated 14 August 2012
* A DD Form 2329 (Record of Trial By Summary Court-Martial) dated
15 August 2012
* A memorandum issued by the U.S. Army Trial Defense Service, Joint Base Elmendorf-Richardson, AK, dated 29 August 2012
* A memorandum issued by the commander of the 724th Postal Service Loop #8500, dated 1 October 2012, concerning a recommendation to retain another Soldier who had committed an offense

CONSIDERATION OF EVIDENCE:

1.  On 1 February 2005, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 11B (Infantryman).

2.  On 1 July 2010, the applicant was promoted to sergeant (SGT)/E-5.

3.  Two DA Forms 2823 provided by the applicant and PFC T-----, both dated
27 February 2012, simply state the applicant and PFC T----- had contact with a PV2 L-- downtown who was not supposed to be drinking and was required to report in to the staff duty officer.  Both statements indicated PV2 L-- did not appear to have been drinking.  The applicant indicated in his statement he did not know PV2 L-- was restricted to the barracks.

4.  A DA Form 2823, dated 2 May 2012, as provided by the applicant, was written by PV2 L--.  The essence of this statement is that he left the barracks at 10:17 pm and got into a car with the applicant.  They went downtown to a wine bar.  They and another Soldier had a few drinks and then went to another bar where they consumed more drinks.  At around 1:00 am they left the bar because the applicant and his wife were having an argument.  They all headed back to post.  The applicant dropped off PV2 L-- at his barracks.

5.  A DA Form 2823, dated 7 June 2012, was also written by PV2 L--, states in essence that PV2 L-- states he told the applicant in a text message that he was not allowed to leave post and he had to sign in every 2 hours.  The applicant knew he was restricted to post.


6.  On 30 July 2012, a charge was preferred against the applicant for wrongfully advising PV2 L-- to disobey an administrative order by breaking restriction and consuming alcohol.

7.  A DD Form 2329 clearly reports the applicant was charged with the offenses discussed above.  He did not object to trial by summary court-martial.  The form does not indicate the applicant's pleas or findings but does show he was sentenced to a reduction to specialist (SPC)/E-4, a forfeiture of 1/3 of 1 month's pay, and restriction for 60 days.

8.  On 29 August 2012, the applicant's trial defense counsel requested clemency/disapproval of the conviction on behalf of the applicant.  The memorandum summarized the charges, the testimony during the trial, and the text messages that were used as evidence.

9.  On 12 September 2012, the convening authority approved the sentence and ordered it to be executed.

10.  A memorandum provided by the applicant, dated 1 October 2012, discusses a commander's decision to recommend retention of another Soldier who had committed a first offense, had completed ASAP, and continued to train Soldiers and maintain discipline.  There is no apparent relationship between this action, the named Soldier, and the applicant's subsequent discharge.

11.  On 6 December 2012, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense).  His service was characterized as general, under honorable conditions.

12.  A review of the applicant's AMHRR shows his administrative discharge packet includes copies of his summary-court martial conviction and sentence.

13.  Army Regulation 600-8-104 (AMHRR Management) provides that all personnel information recorded under the authority of this regulation is the property of the U.S. Government.

	a.  Once recorded, it will not be removed except as provided by law or this regulation.

	b.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from, or moved to another part of the AMHRR unless directed by one or more of the following:


* The Army Board for Correction of Military Records (ABCMR)
* The Department of the Army Suitability Evaluation Board (DASEB)
* Chief, Appeals and Corrections Branch, U.S. Army Human Resources Command (HRC)
* The AMHRR custodian when documents have been improperly filed
* Commander, HRC, ATTN: HRC-PDO-PO, as an approved policy change to this regulation
* Chief, Appeals Branch, National Guard Personnel Center

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his AMHRR should be corrected by removing a summary court-martial.  He also requests his prior rank/grade of SGT/E-5 be restored effective 20 August 2012.  Furthermore, he wants these corrections reflected on his DD Form 214.

2.  The evidence of record clearly indicates the applicant was convicted by a summary court-martial.  His sentence included a reduction to SPC/E-4.  He provides insufficient evidence to show his command exerted undue influence over his court-martial.  The documents related to this action were properly filed in his AMHRR.

3.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  There is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

4.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130000831



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ABCMR Record of Proceedings (cont)                                         AR20130000831



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