IN THE CASE OF:
BOARD DATE: 20 August 2013
DOCKET NUMBER: AR20130010147
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 the removal of a special court-martial order from his Army Military Human Resource Record (AHMRR), formerly known as the Official Military Personnel File (OMPF) or as an alternative, that it be transferred to the restricted section on his AMHRR.
2. The applicant states he believes it to be unjust for the special court-martial order to remain in his AHMRR because it happened almost 10 years ago and its presence is restricting his ability to progress and may result in his separation under the Qualitative Management Program (QMP). He goes on to state that since the incident he has done his best to be an outstanding Soldier, he has learned from his mistake, and he sees every day as an opportunity to give back to the profession that he almost lost.
3. The applicant provides a three-page letter explaining his application, 11 third-party letters of support, copies of his Enlisted Record Brief (ERB), the special court-martial order, Noncommissioned Officer Evaluation Reports and awards.
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. The applicant enlisted in the Regular Army on 11 May 1999 for a period of 4 years, training as an administrative specialist and a cash enlistment bonus. He completed his training and was assigned to Fort Bragg, North Carolina.
3. He reenlisted on 25 October 2002 for a period of 6 years and a Targeted Selective Reenlistment Bonus (TSRB).
4. On 24 November 2004 he was convicted pursuant to his pleas by a special court-martial convened at Fort Bragg of stealing mail matter and receiving stolen property. He was sentenced to confinement for 90 days and reduction to the pay grade of E-1.
5. On 30 August 2006 he reenlisted for a period of 6 years and a selective reenlistment bonus. He was promoted to the pay grade of E-5 on 1 December 2005 and to the pay grade of E-6 on 1 March 2009.
6. His records show that he has deployed on five occasions to Bosnia, Kosovo, Iraq (twice), and Afghanistan.
7. Army Regulation 600-8-104 (AMHRR Management) serves as the authority for filing of documents in the AMHRR. It states, in pertinent part, that when there is an approved finding of guilty on at least one specification, the court-martial order will be filed on the performance section of the AMHRR. If all charges and specifications are dismissed or if all charges and approved findings are not guilty, the court-martial will be filed on the restricted section of the AMHRR.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that the special court-martial order should be removed from his official records because it serves to impede his career progression has been noted and found to lack merit.
2. There are no provisions for removing court-martial orders from official records and no provisions for filing a court-martial order in the restricted section of the AMHRR unless all findings are not guilty.
3. While the applicant has provided numerous letters of support that applaud his performance, there are no provisions to grant the relief he is requesting and to do so would afford him a benefit not afforded to other Soldiers who were convicted by a court-martial.
4. Accordingly, there is no basis to grant the applicants request.
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) AR20130010147
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