MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  10 May 2000
	DOCKET NUMBER:   AR20000039760

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret Patterson		Chairperson	
	Mr. Thomas B. Redfern		Member	
	Mr. George D. Paxson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his 1990 special court-martial order and related documents be transferred from his Official Military Personnel File (OMPF) disciplinary data section to his restricted data section microfiche.

APPLICANT STATES:  That in 1990, he pleaded guilty to UCMJ offenses at a court-martial at Fort Jackson, South Carolina.  He was reduced from E-4 to E-1, received hard labor without confinement, but no discharge was adjudged.  At the time, he was just a young soldier.  Since then he has soldiered his way back from E-1 to Staff Sergeant E-6.  He has faced no administrative separation proceedings, no qualitative management program action, and no UCMJ action since the 1990 court-martial.  Last year, in May/June 1999, he was passed over by the Sergeant First Class E-7 promotion board.  He believes this pass over clearly occurred because of the court-martial conviction in his record.  Maintaining the conviction/promulgation order in his performance fiche is an injustice because it only serves to punish him 9-10 years after the fact by significantly contributing to his non-selection for E-7.  He honestly believes that the conviction and sentence have served their intended purpose of punishing him for his acts at the time, and waking him up to the fact that he must lead a clean life.  He has clearly done so, as is evidenced by his five promotions and the awards he has received since being reduced to E-1.  His conviction will never go away, but he truly believes that a 9-10 year old court-martial promulgation order unfairly prohibits him from obtaining his next possible rank when he has shown the ability to overcome.

EVIDENCE OF RECORD:  The applicant's military records show:

That the applicant enlisted in the U.S. Army Reserves (USAR) on 27 August 1984 as an E-1.  He became qualified as a medical specialists and was advanced to the grade E-4.  On 1 October 1985, he enlisted in the USAR Delayed Entry Program as an E-4 with a subsequent enlistment in the Regular Army on 25 October 1985.  He enlisted for the Military Occupational Specialty 64C, motor transport operator.

On or about 16 November 1990, the applicant received a special court-martial for stealing a wallet containing an automatic teller machine card, one active duty military identification card, one drivers license, and credit cards on 21 June 1990. On 21-22 June 1990, the applicant used the stolen identification and credit cards to steal by false pretense $12.00 worth of gasoline, groceries and merchandise of value of about $219.24, a tire of value of about $177.45, two television sets of value of about $551.63, one television set of value of about $524.99, and attempted to buy one television set of value of $100.00.  The court-martial found

the applicant guilty of these charges and sentenced him to reduction to E-1, hard labor without confinement for one month, and forfeiture of $482.00 for one month as corrected by the Army Judge Advocate General.

After serving his sentence, the applicant demonstrated adequate performance of duty to be advanced back through the ranks to E-4 and then promoted to Sergeant E-5 on 1 July 1992.  He was further promoted to Staff Sergeant E-6 on 
1 April 1994.

He has been awarded the following military awards:  the Army Good Conduct Medal 4th award, the Army Achievement Medal first Oak Leaf Cluster, and the Army Commendation Medal 4th Oak Leaf Cluster, and the Drivers and Mechanics Badge with W Bar.

The applicant’s evaluation reports as a non-commissioned officer are average to above average with the last five showing the rater’s evaluation of potential as “Among the Best” and senior rater’s evaluation as “Overall Performance – 
#1 successful” and “Overall Potential - #1 superior”.

Army Regulation 640-10, Individual Military Personnel Records, table 4-1 shows that court-martial orders are filed in the performance data section of the OMPF microfiche.  They are only filed in the restricted data section of the OMPF if there are no findings of guilty or if charges are later dismissed and all findings of guilty are reversed.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s special court-martial was reviewed by The Judge Advocate General of the Army for accuracy and justice.  The sentence was corrected to meet UCMJ limitations.  No other error or injustice was found in the court-martial.

2.  The court-martial order and related documents are correctly filed in the applicant’s OMPF performance data section according to Army regulation.  No error or injustice is found in the filing of the court-martial order and related documents.

3.  The applicant states that the court-martial has served its purpose and should be transferred to the restricted data section of his record.  It is noted that he has no other disciplinary action in his record and that he otherwise has a good and 

honorable military record.  However, the violations committed by the applicant were not committed by a young inexperienced soldier.  The applicant was 
35 years old and had been serving in the military for 6 years at the time he stole a wallet with ID cards and credit cards and used them to steal by false pretense 
over $1,485 dollars value of merchandise.  The serious nature of the offenses 
does not warrant removal of the court-martial order to the restricted OMPF microfiche.

4.  The court-martial record is part of the applicant’s overall military performance record just as are his military awards and evaluation reports.  Promotion is based on the soldier’s entire performance history and as a such, the court-martial order is a legitimate part of the applicant’s military career performance.  Non-selection for promotion is not a punishment.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__MP____  ___TR___  __GP___  DENY APPLICATION

					Carl W. S. Chun
			      Director, Army Board for Correction
         of Military Records

INDEX

CASE ID	AR2000039760	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000510	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.123.07	Removal	
2.		
3.		
4.		
5.		
6.