IN THE CASE OF: 

		BOARD DATE:	  27 August 2014

		DOCKET NUMBER:  AR20130021743 


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 General Court-Martial Order Number 91, dated 
28 March 2003, be transferred from the performance portion to the restricted portion of his official military personnel file (OMPF).

2.  The applicant states the intended purpose has been served and the transfer would be in the best interest of the Army.  

	a.  The conduct violation took place during his enlisted career and not as an officer.  He was approved for a moral and a medical waiver due to the general court-martial and a gunshot wound from Iraq in 2006 prior to being selected as a warrant officer.  A civilian applying for the warrant officer program with conduct or even criminal charges must obtain the same moral waiver; however, these charges would never be viewable to the promotion board during the warrant officer promotion procedures.  This is unfair and prejudicial in nature.  

	b.  He currently holds three of the four warrant officer career tracks available and he has always worked in positions of greater responsibility.  He feels it is in the Army's best interest to transfer the general court-martial order to the restricted portion of his OMPF and allow him an equal opportunity for promotion. Without moving the file, he is sure he will be passed over for a second time and will be forced to separate from the Army.

3.  The applicant provides:

* six personal references
* three DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* eight DA Forms 67-9 (Officer Evaluation Report (OER))
* Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY General Court-Martial Order Number 91, dated 28 March 2003 

CONSIDERATION OF EVIDENCE:

1.  On 4 April 2000, he enlisted in the Regular Army for 5 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31B (Military Police).

2.  On 18 October 2002, he was arraigned before a general court-martial on the following offenses.  

	a.  Charge I.  Article 125.  Plea:  not guilty. Finding:  not guilty, but guilty of indecent acts with another in violation of Article 134.  The military judge informed the panel of the applicant entering a finding of not guilty to the lesser included offense of indecent acts in Charge I.

		(1)  Specification:  Commit forcible sodomy on or about 15 January 2002. Plea: not guilty.

		(2)  Finding:  not guilty, but guilty of indecent acts with another in violation of Article 134.  The military judge informed the panel of the applicant entering a finding of not guilty to the lesser included offense of indecent acts in Charge I.

	b.  Charge II.  Article 134.  Plea:  not guilty.  Finding:  guilty by variance.

		(1)  Specification 1:  Make a false official statement on or about 
17 January 2002.  Plea:  not guilty.  Finding:  not guilty.

		(2)  Specification 2:  Wrongfully endeavor to impede an investigation into allegations made against the accused on or about 17 January 2002.  Plea:  not guilty.  Finding:  not guilty.

		(3)  Specification 3:  Commit conduct which was prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces while performing duties as a military policeman by requesting oral sex during a traffic stop on or about 15 January 2002.  Plea: not guilty.  Finding: guilty, with variance.  The Charge II, Specification 3 shows applicant, did at or near Fort Knox, Kentucky, on or about 15 January, wrongfully carry out his duties as a military policeman in that the accused engaged in premeditated personal business during a traffic stop of the said Mrs. B____, which conduct is prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

3.  His sentence consisted of reduction to the rank/grade of private/pay grade 
E-2, a forfeiture of $150.00 pay for 6 months, and hard labor without confinement for 45 days.  On 28 March 2003, the convening authority approved the sentence.

4.  A letter, dated 24 April 2003, from the U.S. Army Legal Services Agency, Arlington, VA, stated that office completed a review of his general court-martial on 24 April 2003.  The record of trial contained sufficient legal and competent evidence to support the approved findings of guilty and the sentence beyond a reasonable doubt.  The findings and sentence in his case were final and conclusive.

5.  On 13 April 2004, he immediately reenlisted for 4 years and for training in MOS 19K (Armor Crewman).  On 1 February 2005, he was promoted to staff sergeant (SSG)/pay grade E-6.  On 6 December 2005, he immediately reenlisted for 6 years.

6.  On 6 November 2006, he was discharged to accept a commission or warrant in the Army.

7.  On 7 November 2006, he was appointed a warrant officer one (WO1) in the U.S. Army Reserve (USAR).  He was ordered to active duty for 6 years upon successful completion of the Warrant Officer Candidate Course.

8.  On 7 November 2008, he was promoted to chief warrant officer two (CW2).

9.  The applicant provided six personal references.

	a.  In a memorandum, dated 20 November 2013, Major General (MG) T_____, the convening authority at the time of the applicant's general court-martial, fully supported the immediate transfer of the general court-martial order to the applicant's restricted file.  He stated the applicant had declined nonjudicial punishment (NJP) for allegations a female made against him during a traffic stop. MG T_____ believed the intended purpose of the order had been served and transfer to the restricted portion of the applicant's OMPF would be in the best interest of the Army.  He stated the intent of the general court-martial order he directed was not to terminate his career, but to discipline him appropriately.


	b.  In a memorandum, dated 18 November 2013, Colonel (COL) D___ fully supported the immediate transfer of the general court-martial order to the restricted portion of the applicant's OMPF.  COL D____ stated the applicant had served honorably as a warrant officer and aviator and had proven that his integrity and reliability were of the highest caliber.  He had demonstrated a full recovery from the offense early in his career and now serves as an example to his peers and subordinates.  Allowing the record of his infraction to negatively influence his board file is in contravention to the spirit of self-improvement through which he received his initial waiver when entering the Warrant Officer Corps.

	c.  In a memorandum, dated 2 December 2013, Lieutenant Colonel (promotable) (LTC (P)) R___ stated he fully supported the immediate transfer of the general court-martial order to the restricted portion of the applicant's OMPF.  LTC (P) R___ stated he has known the applicant for nearly 4 years and served with him twice during combat operations in Afghanistan.  He witnessed firsthand the applicant's integrity, professional maturity, and reliability as a Soldier and Aviator.  He is a leader of the highest caliber, and his character has been nothing short of exemplary.  He has clearly demonstrated a full recovery from the offense earlier in his career and serves as a tremendous example for his peers and subordinates.  Permitting this infraction of more than 10 years ago to negatively influence his board file will surely terminate a great career that has been possible due to an original waiver.

	d.  In a memorandum, dated 18 November 2013, LTC Z________ stated he fully supported the immediate transfer of the general court-martial order to the restricted portion of the applicant's OMPF.  He is counted on everyday to perform for his unit and has proven himself numerous times in the past.  He has deployed twice with Company B, 6th Battalion, 101st Aviation.  His knowledge and leadership are the reasons that his unit was so successful.  He deserves a fresh start in the Warrant Officer Corps and has already received a waiver for the general court-martial during his initial application for flight school.  It would be beneficial to the Army to allow the applicant to continue his service with excellent chances for greater responsibility and promotions.  If the general court-martial order is not moved to his restricted folder it will result in the loss of a great warrant officer during next year's promotion board.

	e.  In a memorandum, dated 18 November 2013, CW4 B_____ fully supported the immediate transfer of the general court-martial order to the restricted portion of the applicant's OMPF.  The unit has relied upon him numerous times to get the mission done.  He has proven himself time and time again as one of his "go to guys" and senior air assault flight leader.  If his “waiver” is not moved to his restricted folder, the Army will miss out on an extremely tactical and technical warrant officer.  He deserves a fresh start in regard to his officer career.

	f.  In an undated statement Captain F_______ provided his strongest endorsement and appreciation for the applicant and CW4 B_____ for their direct support to Task Force 3-10 as the CH-47 flight leads.  They, and their crews, provided the best support he received during his four combat deployments and multiple rotary wing training exercises.

10.  He provided three NCOERs covering the period from May 2004 to 31 August 2006.  All three NCOERs show:

* his rater rated him among the best in overall potential for promotion and/or service in positions of greater responsibility
* his senior rater rated him successful in overall performance and superior in overall potential for promotion and/or service in positions of greater responsibility  

11.  He provided eight OERs covering the period from 1 May 2008 to 11 January 2014.  All eight OERs show:

* his rater rated his performance and potential for promotion as "outstanding performance, must promote"
* his senior rater rated him as "best qualified" for promotion potential to the next higher grade

12.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.

	a.  On completing their deliberations, promotion board members certify to the Secretary of the Army that the board carefully considered the records of each officer whose name was furnished to the board and officers recommended for promotion are, in the opinion of the majority of the members of the board, fully qualified and best qualified for promotion to meet the needs of the Army.

	b.  Board proceedings will not be disclosed to anyone who is not a board member unless approved by the proper authority.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/Records), in effect at the time he was appointed to WO1, prescribed the policies governing the OMPF.

	a.  Paragraph 2-7a stated when enlisted Soldiers were appointed as commissioned or warrant officers, their enlisted OMPF was collocated with their new officer OMPF.  The enlisted OMPF, however, was not to be released to officer selection boards.  Awards and decorations were transferred to the newly created officer performance record.  For those enlisted Soldiers who were appointed or commissioned prior to February 1981, records of courts-martial conviction will be filed on their respective officer restricted record.

	b.  Table 2-1 (Composition of the OMPF) stated that court-martial orders were to be filed in the performance record when there is an approved finding of guilty on at least one specification.  Also supplemental orders are to be filed.

14.  Paragraph 3-10 (Document masking in the integrated Personnel Electronic Records Management System (iPERMS)) of Army Regulation 600-8-104, currently in effect, states that for Soldiers transitioning from enlisted to officer military personnel classification, all Article 15 documents and letters of reprimand related to the previous military personnel classification will be moved to the restricted folder.  All performance documents which do not cross over from enlisted to officer will be masked, with the exception of awards authorized for permanent wear.

15.  U.S. Army Human Resources Command, Documents Required for Filing in iPERMS (integrated Personnel Electronic Records Management System), dated 
16 May 2014, states court-martial orders are filed in the performance folder when there is an approved finding of guilty on at least one specification.

DISCUSSION AND CONCLUSIONS:

1.  He contends the conduct or criminal charges of a civilian who obtained a moral waiver would never be viewed by a promotion board.  Charges waived for entry into the Army are not a part of an individual's service history.  However, entry into various programs may require an individual to reveal their conduct or criminal history.  A court-martial conviction received after entry into service does become a part of an individual's military history of service, conduct, and duty performance.

2.  He contends that without moving the general court-martial to his restricted file he is sure he will be passed over for promotion a second time.  This implies that he has been passed over the first time for promotion for CW3.  Comments in the statements from the six personal references also indicate that failure to move the general court-martial order will cause him to be passed over a second time.  The promotion boards consider the records of each officer whose name is furnished to the board and recommends the best qualified for promotion to meet the needs of the Army.  Board proceedings are not disclosed to anyone who is not a board member.  Although not specifically stated in the current Army Regulation 
600-8-104, previous versions stated the enlisted OMPF was not released to officer selection boards.  Therefore, it cannot be known if the general court-martial order as an enlisted member was viewed by the board or whether it was the reason for him being passed over for promotion the first time.  

3.  The applicant as well as the former convening authority contend the general court-martial order has "served its purpose" and should be moved.  Whether a document has "served its purpose" is applied to records of corrective action, such as NJP or letters of reprimand.  A court-martial order is not considered a corrective action; it is a record of conviction of violation(s) of the Uniform Code of Military Justice (UCMJ).  Therefore, the term "served its purpose" does not apply in the case of court-martial orders.

4.  The general court-martial order is properly filed in his OMPF in accordance with both the regulation in effect at the time and under the current regulation.  The current regulation specifically states that Article 15's and letters of reprimand from enlisted service are moved to the restricted portion of a newly appointed officer's record on iPERMS.  The term "all performance documents, which do not cross over from enlisted to officer" in the regulation refers to enlisted evaluation reports.  The regulation does not provide for the moving of a general court-martial from the performance portion to the restricted portion.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  The OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods.

5.  The applicant was reenlisted twice, was promoted to SSG, received a moral waiver to enter the warrant officer program, and he has been promoted to CW2. Therefore, there is no evidence that an error or injustice has occurred as a result of the general court-martial order in his OMPF.

6.  The Army has an interest in maintaining the integrity 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.  Therefore, there is an insufficient basis to move General Court-Martial Order Number 91, dated 28 March 2003, to his restricted folder.


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)                                         AR20130021743



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ABCMR Record of Proceedings (cont)                                         AR20130021743



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