IN THE CASE OF:	  

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20150000943 


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 reconsideration of his previous request to transfer or remove General Court-Martial (GCM) Order Number 91, dated 28 March 2003, from the performance section to the restricted section of his official military personnel file (OMPF) and a new request for promotion reconsideration by a Special Selection Board (SSB) for promotion to Chief Warrant Officer Three (CW3)/W-3.

2.  The applicant states:

	a.  He suffered an injustice when his court-martial panel clearly went outside the legal guidelines of the Rules for Courts-Martial (RCM) Rule 918 (a)(1), by changing the nature of the original offense charged, from conduct of a sexual nature to conduct of personal business nature.  A panel may use exceptions and substitutions to change a specification; however they may not be used to change the nature of the offense.  In his case the nature of the offense was clear and specific to that of a sexual nature and as it reads now it is vague and is not expressly defined by military case law.  He is not asking the Army Board for Correction of Military Records (ABCMR) to disturb the finality of his court-martial conviction or to set aside the court-martial, vacate the conviction, or change the GCM findings document but requests relief from the injustice by placing the document in his restricted portion of his OMPF.

	b.  The GCM order was masked during his first centralized selection board as an officer and not masked for the next centralized selection board.  This gave an unfair advantage to his peers and is prejudicial in nature.  He contends that his performance as a noncommissioned officer (NCO) and officer has been nothing short of excellent as supported by his letters of support and evaluations.

3.  The applicant provides:

* letters of support
* RCM Rule 918
* GCM Order Number 91, dated 28 March 2003, and allied documents
* email correspondence from U.S. Army Human Resources Command (HRC) officials
* DD Form 214 (Certificate of Release or Discharge From Active Duty), effective 6 November 2006
* numerous service school, NCO, and officer evaluation reports (OER)
* Format for Making Minor Modifications to a Specification (unknown source)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130021743, on 27 August 2014.

2.  The applicant has provided new evidence and arguments which will be considered by the Board.

3.  The original record of proceedings (ROP) considered evidence which included several character references and numerous academic/performance evaluations.  The Board found that:

	a.  He reenlisted twice, was promoted to staff sergeant, received a moral waiver to enter the warrant officer program, and was promoted to CW2. Therefore, there was no evidence that an error or injustice had occurred as a result of the GCM order in his OMPF.

	b.  The GCM order was 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 GCM from the performance portion to the restricted portion.  Therefore, there was an insufficient basis to move GCM Order Number 91, dated 28 March 2003, to his restricted folder.

4.  The applicant is currently a Chief Warrant Officer 2 serving in the Regular Army.

5.  He provides a memorandum for record which shows in:

* 2002, he was tried by GCM and found not guilty of all offenses with the exception of Charge II, Specification III which was amended by variation to a new offense
* 2003, he applied to the ABCMR for relief and was referred to the Department of the Army Suitability Evaluation Board (DASEB)
* 2006, he applied for and was accepted to the Army Warrant Officer Program (he required one moral and one medical waiver)
* November 2006, an HRC official briefed his Warrant Officer Candidate class and informed him that nothing from his enlisted career would transfer, other than awards, deployments, and some schools.  Based on this information he never followed up on the GCM injustice
* June 2012, while deployed to Afghanistan, another HRC official told him that no conduct from his enlisted career would be seen by the Officer Promotion Board and his enlisted record would be sealed in the restricted portion of his OMPF
* February 2013, while preparing for the FY2013 CW3 Promotion Board he noticed the GCM in the disciplinary section of his OMPF.  He contacted HRC and again he was told the document would not be viewable until he was in the zone for consideration for CW5
* August 2013,he was passed over for promotion to CW3 and the HRC officials now told him that only his enlisted disciplinary records are viewable by promotion boards.  He applied to the DASEB to have the GCM transferred to the restricted section of his OMPF
* October 2013, the DASEB returned his application without action and informed him that he must apply to the ABCMR
* December 2013, the ABCMR denied his request to transfer the GCM order to the restricted section of his OMPF 
 
6.  The applicant makes two arguments:

	a.  He contends that the court-martial panel erred when it used exceptions and substitutions to change the nature of his original offense, which is in violation of the guidelines of the Manual for Courts-Martial (MCM) Rule 918(A)(1).  Further, the misuse of this rule denied him his constitutional right to due process, because he was not given notice and/or the opportunity to defend against the new offense, and his counsel failed to object to the findings stating that the findings would be overturned upon appeal and they were not.

	b.  His states that in his initial appeal he argued that allowing the GCM document to be viewable to the Officer Promotion Board was prejudicial in nature because he had received an approved moral waiver as part of his selection to the Warrant Officer Program.  Further, he had received an honorable discharge from the Army for his enlisted service.  The fact that he was able to be promoted and reenlisted since receiving the disciplinary action are not clear indicators that an error or injustice has occurred as a result of the GCM order.  His enlisted and officer performance has been nothing short of excellent.  He argues the Warrant Officer Selection Board is a Centralized Selection Board and his disciplinary record was masked during the selection process.  The ABCMR found that there was no evidence the GCM document was the reason for his non-selection for promotion; however, his performance has not changed.  The only change is that his GCM order was visible to the Promotion Selection Board.

7.  The applicant provides the following:

	a.  His GCM order and allied documents.

	b.  Rule 918. Findings, MCM, which prescribes that general findings as to a specification may be: guilty; not guilty of an offense as charged, but guilty of a named lesser included offense; guilty with exceptions, with or without substitutions, not guilty of the exceptions, but guilty of the substitutions, if any; not guilty only by reason of lack of mental responsibility: or, not guilty.  Exceptions and substitutions may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it.  It further states in the Discussion section:

Exceptions and substitutions.  One or more words or figures may be expected from a specification and, when necessary, others substituted, if the remaining language of the specification, with or without substitutions states an offense by the accused which is punishable by court-martial.

	c.  Several emails between the applicant and HRC officials which show he attempted to get clarification as to whether or not the GCM order he received as an enlisted Soldier in 2002 should be viewable in his 2013 CW3 Promotion Board File.  He was initially told that enlisted documents are not seen in the Promotion Board File, but would be seen in his OMPF and that the integrated Personnel Electronic Records Management System (iPERMS) could better address his questions.  He was also directed to apply to the Army Review Boards Agency if he wanted to have the document removed or transferred to the restricted portion of his OMPF.

	d.  Several letters, one from a retired general officer, supporting the immediate transfer of the GCM order to the restricted portion of his OMPF.  

	e.  A memorandum, subject:  Moral Waiver Approval Process for the Warrant Officer Selection Board (WOSB), dated 27 October 2014.  The Chief, Special Programs and Boards stated that the applicant was considered and selected to be a Warrant Officer during the May 2006 WOSB and his board file included a moral waiver.  During the conduct of the WOSB, board members may be aware of whether an applicant required a moral waiver; however, they do not have access to the specific reasons/issues regarding a moral waiver.

	f.  Numerous academic, enlisted, and officer evaluation reports.  His OERs for the period 1 May 2008 through 11 January 2014 which show he received ratings of "Outstanding Performance, Must Promote" and "Best Qualified." 

8.  Army Regulation 600-37 (Unfavorable Information) states in chapter 7:

	a.  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.

	b.  Consideration of appeals does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

9.  Army Regulation 600-8-29 (Officer Promotions) states an SSB may be convened under Title 10, U.S. Code, section 268 (10 USC 628) to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative or material error.



10.  Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) states in:

	a.  Table 3-1 (Army Military Human Resource) the “Performance” folder maintains performance related information to include evaluations, commendatory documents, and specific disciplinary information and training/education documents.  The primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty.  This folder populates various board related applications (for example, Army Selection Board System, National Guard Army Board System). 

	b.  Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) of this regulation shows that court-martial orders are filed in the performance section when there is an approved finding of guilty on at least one specification.  However, if all approved findings are not guilty, the order is filed in the restricted section of the OMPF.

	c.  Paragraph 3-8, that Soldiers transitioning from officer to enlisted or enlisted to officer military personnel classification:  All Article 15 documents related to the previous military personnel classification will be moved to the "Restricted" folder.  All performance documents including DA Forms 1059, which do not cross over from enlisted to officer or vice-versa, will be masked. If the document can be earned by both officer and enlisted ranks then the document will not be masked.

11.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U. S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and evidence have been carefully considered; however, the available evidence does not support granting the requested relief.

2.  In his first new argument he contends that he was denied due process with regard to his court-martial conviction because the panel changed the nature of specification beyond what is acceptable under RCM 918(A)(1) and his trial counsel failed to make any objections.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Based on his own admission the GCM findings were not overturned on appeal so it can be presumed that he exhausted his appellate review on this matter.  As such, this argument cannot be applied. 

3.  He further argues that upon applying for the Warrant Officer Program he was granted a moral waiver and his GCM order was "masked" during this "centralized selection" process so to have it "unmasked" during the centralized selection for promotion to CW3 is unjust.  His entry into the Warrant Officer Program is a significant achievement but to say his GCM order was masked is an accurate statement.  The evidence shows his GCM order was not masked in the sense that it was placed in the restricted portion of his OMPF; rather, the order was "replaced" by an approved moral waiver.  The Warrant Officer Selection Board was aware there was some type of derogatory information in his record but they were unable to see the actual document.  Further, the selection process to the Warrant Officer Program is not the same as the centralized process for promotion.  Each are independent processes governed by separate policies and regulations.

4.  Court-martial orders are filed in the performance section of the OMPF when there is an approved finding of guilty on at least one specification and there are no exceptions to the filing of this document.  He provides email correspondence which states that enlisted documents will not be seen in his promotion board file and directing him to contact the iPERMS office because they would know better.  It is unclear if he sought this clarification, but nonetheless, it is evident that he has tried to have the GCM order moved to the restricted section of his OMPF on several occasion with several different agencies to include the DASEB and the ABCMR.  His situation is unfortunate, but to transfer the GCM order is in direct contradiction with the regulatory guidance and would provide him an advantage over his peers that have GCM orders filed in their OMPF.

5.  His GCM order is properly filed and there is no basis to transfer it to the restricted portion of his OMPF; therefore, his request should be denied.



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 to amend the decision of the ABCMR set forth in Docket Number AR20130021743, dated 27 August 2014.




      _______ _   __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)                                         AR20150000943





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ABCMR Record of Proceedings (cont)                                         AR20150000943



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