BOARD DATE: 17 July 2014
DOCKET NUMBER: AR20140009059
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, in effect, transfer of all documentation related to two courts-martial from his performance section to his restricted section of his Official Military Personnel File (OMPF).
2. The applicant states he would like this injustice transferred to the restricted section of the OMPF because he was serving in a lower enlisted grade when it happened and it has been over 6 years since the action was taken against him. He is attending the Noncommissioned Officer of the Year Competition and wants his record to be correct.
3. The applicant provides copies of seven pages of documents related to his 2003 summary court-martial, including the DA Form 4187 (Personnel Action);
16 pages of documents related to his 2006 summary court-martial, including a DD Form 2329 (Record of Trial by Summary Court-Martial); and an Enlisted Record Brief, dated 7 February 2006.
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 22 June 2002 with reenlistments on 14 March 2005 and 7 January 2010.
3. The applicant, as a private first class (E-3), was absent without leave (AWOL) from 8 April 2003 through 16 September 2003. This period of AWOL, 162 days, ended by apprehension by civil authorities. In accordance with his plea, a summary court-martial found him guilty of being AWOL.
4. On 16 March 2006, a summary court-martial found the applicant, then a specialist (E-4), guilty in accordance with his plea of AWOL from 6 30 January 2006.
5. The applicant was promoted to staff sergeant (E-6) effective 1 August 2009.
6. Army Regulation 60037 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. It states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. This does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders.
7. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandates operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System. It states that disciplinary information, including court-martial orders, are to be filed in the OMPF in a Soldier's performance file.
DISCUSSION AND CONCLUSIONS:
1. The applicant twice pled and was found guilty by a summary court-martial of being AWOL. The results of the courts-martial were properly filed in the performance section.
2. The applicant has not provided and the record does not contain any indication of an error or injustice warranting moving court-martial documentation to his restricted section.
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.
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