MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            7 November 2000   
	DOCKET NUMBER:   AR2000041428

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Paula Mokulis		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 a court-martial order be expunged from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that he was found “not guilty” and “acquitted” of all charges and as such requests that the court-martial order be removed from his OMPF.  He notes that the documents serve “no other purpose than providing negativity to others when reviewing [his] OMPF.”

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

He entered active duty on 16 June 1986 and was promoted to pay grade E-6 on
1 June 1995.

In May 1995 the applicant was “arraigned at Fort Bragg, North Carolina” on a variety of counts, including conspiring to steal military property, selling, destroying, and stealing military property, and housebreaking with the intent to commit larceny.  He was found not guilty of all charges.

The 12 June 1995 court-martial order is filed on the restricted portion of the applicant’s OMPF.

The applicant’s appeal to the DA Suitability Evaluation Board (DASEB) to expunge the court-martial order was denied.  The DASEB noted that the order was properly filed.

Army Regulation 600-8-104 states that court-martial orders are filed on the restricted fiche if all approved findings are not guilty.  Additionally, if all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, all related orders are removed from the performance fiche and transferred to the restricted fiche.

Army Regulation 600-8-104 also states that the restricted portion of the OMPF is for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this fiche is controlled.  Documents on this fiche are those that must be permanently kept to maintain an unbroken, historical record of a member’s service, conduct, duty performance, and evaluation periods and are intended to protect the interest of the soldier and the Army.  Once placed in the OMPF, the document becomes a permanent part of that file.

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 court-martial order is properly filed and as such no error or injustice exists. The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

2.  Although the applicant may perceive that retention of the order on his restricted fiche might somehow be prejudicial to his career, there is no basis to support that perception.  Rather, retention of the order protects the applicant and the Army’s interest by ensuring that a complete record of the facts are maintained.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

4.  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

__gdp___  ___mhm__  __pm____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041428	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001107	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	68.00	
2.		
3.		
4.		
5.		
6.