IN THE CASE OF:	  

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130019823 


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 General Court-Martial (GCM) Order Number 5, dated 19 August 2010, from his Official Military Personnel File (OMPF).  

2.  He states:

	a.  he admitted he made an extremely poor decision for committing adultery on 12 March 2009.  If he could reverse that choice he would, but that is impossible.

	b.  he was falsely accused and subjected to the humiliation of a GCM trial for crimes he did not commit.  

	c.  the court-martial panel determined he was not guilty of the first two specifications after less than 30 minutes of deliberation.

	d.  he confessed to the adultery charge for which he was punished.  He requested at the end of the GCM that his conviction of adultery be set aside and that he could be disciplined in the manner of a general officer memorandum of record (GOMOR) or an Article 15, Uniform Code of Military Justice, but his request was denied.  



	e.  based on the knowledge of his and U.S. Army Trial Defense Service attorneys, he was the only officer to be solely convicted by a GCM for adultery at that time.

	f.  placing the GCM order in the performance file of his OMPF continues to imply that he is guilty of sexual assault, especially under the current climate.  This prohibits any fair assessment of his personnel file.  

	g.  he was found not guilty of the crimes he did not commit and took responsibility for the single act of adultery.  

	h.  he had no previous history of committing adultery nor has he engaged in such an act since that time.  Consequently, the accuser's previous history of an adulterous relationship or past history of her making accusations against other service members' of sexual misconduct toward her was allowed to be brought into the court record during the GCM.  

	i.  he accepted that his misconduct should be considered, but it should be without any reference to the conduct for which he was found not guilty.  

3.  He provides:

* Letter from the Department of the Army Suitability Evaluation Board (DASEB), dated 24 October 2013
* Memorandum:  Subject;  Letter of Reprimand File Transfer Request, Lieutenant Colonel (LTC) (applicant's name and social security number), undated
* GCM Order Number 5, dated 19 August 2010
* Officer Record Brief

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving in the Army National Guard in the rank of LTC.  

2.  After having prior enlisted service in the Regular Army and the Army National Guard, the applicant was appointed as a Reserve commissioned officer on 3 August 1991 in the rank of second lieutenant. 

3.  He was promoted to LTC on 23 June 2008.


4.  He provided GCM Order Number 5, dated 19 August 2010, which shows on 13 March 2010:

	a.  he was found not guilty, pursuant to his pleas, of two specifications of Article 120 (rape and sexual assault) on or about 12 March 2009.

	b.  he was convicted, pursuant to his plea, of wrongfully having sexual intercourse with a married woman not his wife (adultery).  He was sentenced to a reprimand and a forfeiture of $500.00 pay per month for 24 months.

	c.  on 19 August 2010, only so much of the sentence as provided for a reprimand and forfeiture of $500.00 pay month for 12 months was approved and was executed.  He was reprimanded for his conduct of engaging in an adulterous relationship.  

5.  On an unknown date, he submitted a request to the DASEB to remove or transfer the GCM Order Number 5 and a GOMOR to the restricted portion of his Official Military Personnel File (OMPF).  In a memorandum dated 24 October 2013, the DASEB informed him that the regulation precluded their board from removing or transferring a record of court-martial to the restricted portion of the OMPF and that the contested GOMOR was not filed in his official record in the integrated Personnel Electronic Records Management System (iPERMS).  He was advised to apply to this Board and his case was administratively closed.  

6.  A review of his personnel records in iPERMS revealed that the GCM Order Number 5 was filed in the performance portion of his OMPF.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF and Army Personnel Qualification Records.  It states that once a document is placed in the OMPF 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.

8.  Table B-1 of Army Regulation 600-8-104 states that court-martial orders (general, special, summary) will be filed in the Performance folder when there is an approved finding of guilty on at least one specification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a GCM on 13 March 2010 for adultery and found not guilty of two specifications of rape and sexual assault.  

2.  The evidence of record shows the GCM Order Number 5 was filed in the applicant's performance folder of his OMPF in accordance with the governing regulation.  

3.  Based on Army Regulation 600-8-104, court-martial orders will be filed in the Performance folder when there is an approved finding of guilty on at least one specification.

4.  His service record is void of evidence and he has not provided compelling evidence to indicate this document was improperly filed.  

5.  The evidence presented was insufficient to warrant removal of the GCM Order Number 5, dated 19 August 2010 from the performance portion of his OMPF.

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)                                         AR20130019823



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ABCMR Record of Proceedings (cont)                                         AR20130019823



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