IN THE CASE OF:    

		BOARD DATE:  1 September 2015	  

		DOCKET NUMBER:  AR20150009211 


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 transfer of court-martial orders from the performance section of his official military personnel file (OMPF).  He also requests a personal hearing.

2.  The applicant states he believes the filing of the general court-martial order has served its intended purpose because it prevented him from advancement to the next higher grade.

3.  The applicant provides: 

* statement from his battalion commander
* statement from his brigade commander 
* General Court-Martial Order Number 44, dated 26 October 2006
* Enlisted Record Brief 
* Noncommissioned Officer Evaluation Reports (NCOERs) from March 2008 to January 2015 

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 AR20120016157, dated 15 November 2012.

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his application was neither received within one year of the Board's decision nor does it contain any new evidence.  However, he provides new statements which were not addressed before.  This is considered new evidence and, as a one-time exception to policy, warrants consideration by the Board.  

3.  The applicant enlisted in the Regular Army on 11 June 1998 and he holds military occupational specialty 11B (Infantryman).  He served through multiple reenlistments in a variety of stateside or overseas assignments and he was promoted to staff sergeant (SSG)/E-6. 

4.  He served in Iraq from November 2003 to November 2004.  In November 2004, he was assigned as a squad leader to 5th Battalion, 20th Infantry Regiment at Fort Lewis, WA.  

5.  On 7 June 2006, he was arraigned and tried at a general court-martial at Headquarters, I Corps, Fort Lewis, WA, for violating the Uniform Code of Military Justice as follows: 

* Charge I, Article 81, conspiring with another Soldier to commit larceny of military property (meal ready to eat) of a value of about $8,800 
* Charge II, Article 108, one specification of selling military property (meal ready to eat) to an undercover agent and one specification of disposing of by giving to an undercover agent chemical light sticks 

6.  The court found him guilty of the Charge II and its second specification and sentenced him to a reduction to private/E-1, a forfeiture of $650.00 pay per month for 6 months, confinement of 180 days, restriction for 60 days, and a reprimand. 

7.  General Court-Martial Orders Number 44, dated 26 October 2006, show the convening authority approved a lesser sentence of reduction to E-1, confinement for 180 days, and a reprimand.  The adjudged forfeiture of pay was deferred.  

8.  Also on 26 October 2006, the applicant was reprimanded by the Commanding General, I Corps, for misconduct and failing to adhere to the Army values of duty, selfless service, and integrity. 

9.  The subject court-martial orders are filed in the performance section of his OMPF. 

10.  Since the applicant’s conviction: 

* he was promoted to specialist/E-4 in May 2007, sergeant/E-5 in March 2008, and SSG/E-6 in November 2008
* deployed to Afghanistan from June 2009 to June 2010 and served in Germany from October 2010 to December 2012
* received multiple NCOERs from March 2008 to January 2015 that show solid performance and superior comments for advancement potential

11.  He provides the following evidence in support of his application. 

	a.  A statement dated 22 January 2015, from his current battalion commander, 1st Battalion, 19th Infantry Regiment, Fort Benning, GA, who recommends the court-martial orders be transferred to the restricted section of his OMPF.  The battalion commander states he does not dispute the facts of the applicant's guilt but he believes the conviction and punishment have served their intended purpose and it is time to remove this barrier to the applicant's promotion.  He describes the applicant as a competent and committed leader.

	b.  A statement, dated 23 January 2015, from the applicant's brigade commander, 198th Infantry Brigade, Fort Benning, GA.  He also states he does not dispute the facts of the applicant's guilt but he believes the conviction and punishment have served their purpose.  He recommends the contested court-martial order be transferred to the restricted section of the applicant's OMPF.   He describes the applicant's service as exemplary and he rates him above his peers.  The applicant has paid for his mistake and the quality of his service since this incident should support giving him every opportunity to compete for future promotions. 

12.  Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) governs the composition of the OMPF and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once 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 certain agencies, to include this Board.  

13.  The Army Personnel Records Division (APRD), U.S. Army Human Resources Command, updates the list of Authorized Documents for filing in the AMHRR quarterly.  The new list of Authorized Documents will supersede the list in Table B-1, Appendix B of Army Regulation 600-8-104.  (http://www.hrc.army. mil/site/assets/pdf/iPerms_Required_documents.pdf ).  The filing instructions of a summary, special, or general court-martial are: 

* File 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 order in the restricted folder
* If all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, remove all related orders from the Performance folder and transfer them to the restricted folder

14.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. 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 purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF.  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.  

3.  It is acknowledged the applicant has rebounded from his serious infraction in 2006 in an outstanding manner as evidenced by his performance as well as the strong recommendations from his battalion and brigade commanders.  Nevertheless, the Army has an interest in maintaining the accuracy of its records. The information in those records must reflect the conditions/circumstances that existed at the time the records were created.

4.  Unlike a letter/memorandum of reprimand, which is primarily used as a tool for teaching proper standards of conduct and performance, a court-martial is a conviction by a court and it is a permanent record and part of the Soldier's performance during their career.  The fact that this document has affected his promotion opportunities is a natural outcome of his behavior/performance.  The Board is generally reluctant to transfer or remove adverse information from an AMHRR when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  As such, there is insufficient evidence to support transferring the court-martial order.  

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 AR20120016157, dated 15 November 2012.



      _______ _   _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)                                         AR20150009211





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ABCMR Record of Proceedings (cont)                                         AR20150009211



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