IN THE CASE OF:
BOARD DATE: 1 May 2014
DOCKET NUMBER: AR20140002868
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 a record of civil conviction from her record.
2. The applicant states
a. She has been punished due to this document on several different occasions throughout the last 4 years, these included
* non-transferrable flag placed in 2009
* removal from deployment detachment and transfer back to the battalion
* flag re-instated in May 2012
* removal from Battalion Command Selection list (in May 2012)
* removal from the 2010 promotion list
b. It was dismissed from the Gwinnett County Court System last January and documents referencing this case should have been removed from her record or at the very least put in the restricted folder.
c. She was transferred on several occasions with what should have been a non-transferable flag yet the flag transferred with her and her career has been severely hindered.
3. The applicant provides a copy of a 6 February 2013 court order granting her request for early termination of parole.
CONSIDERATION OF EVIDENCE:
1. On 28 November 2009, the applicant, a U.S. Army Reserve major then on mobilization orders, was arrested in Gwinnet County, Georgia for cruelty to children.
2. On 13 December 2011, she was placed on probation for three consecutive 12-month terms for one count of simple assault and two counts of simple battery (all misdemeanors).
3. The terms of this 36 months of probation, arrived at under "the First Offender Act," provided that no judgment of guilt was entered unless the probation was violated. In the event of a probation violation the court could enter a finding of guilty and impose a maximum legal sentence. The terms and conditions of probation involved numerous other requirements, including completion of an anger management program, abstention from alcohol or non-prescribed drugs, and submission to random testing.
4. Various memoranda and emails circulated within the U.S. Army Reserve Command (USARC) opined that the commanding general had the authority to impose and or withdraw a flag whenever he deemed it appropriate.
5. On 15 January 2014, the applicant was informed the Secretary of the Army had removed her name from the promotion list. The Secretary directed that a copy of that memorandum be filed in the restricted portion of her record
6. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) sets forth the regulations, policy and criteria for suspension of favorable personnel actions (FLAGS). Paragraph 1-9 requires initiation of a FLAG when a service member is under charges, restraint or investigation. This bar to favorable action remains in effect until the status changes to favorable.
7. Army Regulation 600-8-104 (Army Military Human Resource Record Management Program) provides the guidance for maintaining personnel records. Table 2-1 provides that records of conviction or related records of arrest or extracts of them that are authenticated by civilian authorities are to be filed in the Commendatory-Derogatory portion of the performance fiche.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests that the record of civilian misconduct be removed from her record.
2. Notwithstanding the assertion that the incident was "dismissed" there is no evidence of this.
3. The record clearly shows that the applicant served a significant period of supervised probation. The facts that the case was diverted under a state first offender provision and/or that the probation was terminated early are irrelevant.
4. There is no basis for the 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) AR20140002868
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ABCMR Record of Proceedings (cont) AR20140002868
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