IN THE CASE OF:	  

		BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20150008971 


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 earlier request for the removal of the DA Form 2329 (Record of Trial by Summary Court-martial), dated 20 March 2006, from his official military personnel file (OMPF).  He also requests a personal hearing.

2.  The applicant states:

	a.  He was found guilty in an intentional witch hunt.  He was accused of 8 different charges in a combat theater.  He was offered a field grade Article 15, which he refused because the charges that he was briefed on couldn't have happened.  After undergoing a court-martial, an additional charge appeared, a charge of a pornography magazine which was not in the original court charges. Now that he was found not guilty of all other original 8 charges, he was found guilty of this new charge which was having a possession of a Playboy magazine, which was purchased at a post exchange (PX) by an outgoing unit, but found in his room in a stack of magazines.  Now he was found guilty of this charge and in violation of General Order (GO) Number 1.  The chain of command made sure that they would find him guilty of something if it was no more than violation of Article 92.  The command sergeant major (CSM) even made verbal statements saying that if he couldn't find something he would make up something and he does not believe he is guilty of the other charges "but oh well."  This was the word that came from his battalion CSM during his procedures.  This magazine was not his; it was not part of the original reason for the court-martial.  This was a deliberate method to find him guilty of some charge.  He was found not guilty of all his original charges or accusations.
	b.  This is injustice for several reasons.  First, he was accused of 8 different charges.  He originally took matters to a court-martial so that he could get a neutral and unbiased audience.  After undergoing the court- martial and beating all charges, a new charge appeared that he had no knowledge of.  Magically, a Playboy magazine appears in the picture.  He has no idea where it came from.  He speculates the outgoing unit left it along with about 200 other magazines throughout the building.   He is 100 percent certain that if every office and room was checked on that base more than one magazine would have been surfaced.  This magazine could have been planted in his room.  He would never know.  This room and building were accessible to 15 staff members and over 400 civilians a day, but yet during a 4-month long court-martial for assault, improper relationships and many other serious charges, it appeared as evidence once he was found "Not Guilty" of all charges.   

	c.  The Playboy magazine was not a part of the investigation and was a manipulation of charges from his original charges.  There was no proof that this was his magazine, that he purchased it, or that he knew it was in his room.  Additionally, he looked up the history of the magazine and found it was sold at the local military PX and purchased by the outgoing unit months before he arrived in country (when he brought this up to the court or the command, it was denied or never surfaced as a part of the appeal).  The CSM even told the investigating officer to hurry up to pen the charges and never went back to properly investigate all witness, which was all found non-credible during the proceedings by the judge.  The court-martial had no grounds to continue, but the leadership wanted a fall-person and wanted to wrongfully accuse him of something.  He never received a negative Noncommissioned Officer Evaluation Report for this court-martial.  But yet this was filed in his OMPF; the charges, the investigation, and the procedures were all unethical, unjust and very poorly executed.

3.  The applicant does not provide any additional evidence. 

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 AR20130012229, on 10 September 2013.  

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request was neither received within one year of the Board's original decision nor does it contain any new documentary evidence.  However, due to the new issue of a personal hearing, his case will be reconsidered by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 30 December 1998 and he held military occupational specialty 92F (Petroleum Supply Specialist). 

4. He served through multiple reenlistments in a variety of stateside or overseas assignments, including service in Iraq from 26 December 2005 to 30 November 2006.  He was promoted to staff sergeant (SSG)/E-6 in November 2003. 

5.  During October 2005, while deployed, an investigating officer (IO) conducted an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) into allegations of a climate of sexual harassment, sexual misconduct, and fraternization.  The IO determined/confirmed there was a hostile work environment toward female Soldiers, sexual harassment and/or misconduct, and fraternization.  He recommended the unit first sergeant's relief, the issuance of a General Officer Memorandum of Reprimand (GOMOR) to certain NCOs, including the applicant, and other recommendations remanded to the 1st Brigade Commander for action.  

6.  The applicant was ordered relieved from his duties with the Petroleum and Water Platoon, 4th Support Battalion, 4th Infantry Division (Mechanized).  He also received a GOMOR for misconduct. 

7.  The applicant's OMPF contains a DD Form 2329, dated 20 March 2006, which provides a record of the applicant's summary court-martial.  This form shows during preliminary proceedings held on 13 March 2006, the applicant was given a copy of the charge sheet.  He did not object to trial by summary court-martial and was not represented by counsel.  There were four charges with a total of five specifications.  He pleaded not guilty to all charges and specifications.  He was found guilty of charge I, specification 1, and not guilty of all remaining charges and specifications.  This DD Form 2329 is currently filed in the performance folder of his OMPF with the following associated documents:

* DA Form 4430, dated 13 March 2006
* memorandum, Headquarters and Headquarters Company, 1st Battalion, 124th Infantry Regiment, dated 13 March 2006, subject:  Recommendation on Convening Authority Final Action

8.  The memorandum notes that the commander did not impose any punishments but recommended to the convening authority that he implement the following provisions:
* periodic room inspections for contraband of a pornographic or sexually explicit nature
* prepare and present a training class on all prohibited activities outlined    in Multi-National Division-Baghdad, GO Number 1, dated 7 January 2006

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides that all personnel information recorded under the authority of this regulation is the property of the U.S. Government.  This regulation states once a document is placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from, or moved to another part of the OMPF unless directed by authorized officials/agencies, including the ABCMR.  The DD Forms 2329 and associated memoranda, opinions, or letters of legal review will be filed in the performance folder when there is an approved finding of guilty on at least one specification.  If all approved findings are not guilty, file the form and all related documents in the restricted folder.

10.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The evidence shows the applicant was charged with multiple specifications but found guilty on one specification.  The DD Form 2329 is a record of his summary court-martial conviction.  Because he was found guilty of at least one specification, as required by the governing regulation, the applicant's DD Forms 2329 and associated memoranda, opinions, or letters of legal review were filed in the performance folder of his OMPF.

3.   For historical purposes, the Army has an interest in maintaining the integrity of its records.  The information contained in those records must reflect the conditions and circumstances that existed at the time the records were created.  The applicant provides no evidence of an error or an injustice.  Therefore, the applicant's 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 AR20130012229, on 10 September 2013.



      _______ _   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)                                         AR20150008971



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ABCMR Record of Proceedings (cont)                                         AR20150008971



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