MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            13 February 2001  
	DOCKET NUMBER:   AR2000043887

	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:

	June Hajjar		Chairperson	
	Harry B. Oberg		Member	
	Shirley Powell		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:  In effect, that two records of courts-martial be transferred from the performance portion of her Official Military Personnel File (OMPF) to her restricted fiche.

APPLICANT STATES:  In effect, that her performance during the past two and a half years had been “stellar.”  She contends that the presence of the court-martial information in the performance portion of her OMPF “hinders any chance for [her] progression, regardless of [her] stellar performance to the next highest grade.”  She states “these items are based on an incident in which [she] was an abused wife.”  She states that the “abuse, both mental and physical, continued for a period of 2 years throughout [her] 5-year marriage.”  She states the abuse was reported to her spouse’s chain of command (7th Group, Fort Eustis, VA) on several occasions but “they failed to take the necessary actions to prevent any further abuse.”  She notes that she is now divorced but “the incident has scarred [her] life permanently” and that “it will continue to be a hurdle that professionally [she] can never rise above unless these items are removed to [her] restricted fiche.”   ….”  In support of her request she submits a statement from her current supervisor and current commander in addition to selected documents from her OMPF detailing her performance, including completion of the Battalion Intelligence/Operation Sergeant’s Course and award of her fifth Army Good Conduct Medal.

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

She entered active duty on 3 October 1983 when she was almost 23 years old.  She successfully completed basic training and was trained as a movement specialist.

In July 1984 she was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying an order.  The action was filed in her restricted fiche.

The applicant was promoted to pay grade E-5 in 1990 and to E-6 in 1993.  

In May 1997, while assigned to the 1st Replacement Company in Korea the applicant was convicted by a summary court-martial of failing to obey a lawful order “on or about 1 May and 6 May 97.”  She was also charged with “obstruction of justice” but was found not guilty of that charge.  There was no punishment associated with the conviction but the DD Form 2329 (Record of Trial by Summary Court-Martial) was filed in her OMPF.

A 6 March 1998 General Court-Martial Order indicates the applicant, while still assigned to the 1st Replacement Company in Korea, was convicted of assault consummated by battery, a lesser-included offense of the original attempted murder charge.  The original charges also included four counts of adultery, and three counts of aggravated assault, which were “dismissed prior to pleas by military judge.”  She was also charged with communicating a threat and wrongful damage of nonmilitary property but found not guilty of those charges. 

Her punishment included a reprimand, restriction to “limits of place of duty, place of worship, and dining facility,” for two months.  However, “only so much of the sentence as provides for a reprimand” was approved and executed.

The General Court-Martial Order, which included the reprimand, is filed in the applicant’s OMPF.

The applicant’s OMPF indicates that she has been awarded several Army Achievement and Commendation Medals as well as five Army Good Conduct Medals.  Her performance evaluation reports indicate that she has been a solid performer with the majority of rated areas indicating she performed satisfactorily. All but one of her raters, since May 1994, have indicated that her overall potential for promotion was “among the best.”  Her senior raters, with one exception, have rated her overall performance and potential in the top block since may 1994.

The letters submitted in support of the applicant’s request both indicate that she has been an asset to her organization and an outstanding soldier.  However, only the statement from her commander addresses the issue of her court-martial conviction of assault consummated by battery.  He remarks on the applicant’s marriage, her previous unit’s inability to protect the applicant from her abusive spouse, and the applicant’s “conniving, evil-spirited, spiteful and hateful former spouse.”

In the processing of this case an advisory opinion was provided by the Department of the Army Suitability Evaluation Board (DASEB).  They opined that the applicant has “failed to provide adequate evidence to justify her request and it is not in the best interest of the Army to transfer these documents to her R-fiche.” They also indicated that their office spoke with the applicant’s commander who indicated that information included in his statement was “based solely upon his discussion with the applicant,” that he had never met the applicant’s spouse and that he was not present in Korea at the time of the incident.  The commander indicated to officials from the DASEB that he “is very happy with the duty performance of the applicant over the six-month period they have worked together.”  There is no indication the applicant responded when given an opportunity to comment on the advisory opinion.

Army Regulation 600-37 (Unfavorable Information) states that 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. 

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

1.  The applicant was tried and convicted by two courts-martial.  There is no evidence, and the applicant has not provided any, that either court-martial was in error or unjust or that they were improperly filed in her OMPF.  Her contention that she was the victim of domestic abuse and that her actions were warranted is not supported by any evidence in available records or in information provided by the applicant.

2.  The Board notes that the applicant’s records contain not one but three records of misconduct, the two most recent incidents occurring within the last four years.  While her performance prior to and following each of the incidents has been outstanding it is not sufficient to justify transferring either of the court-martial actions to her restricted fiche.  Doing so would place her on an even playing field with other soldiers whose records have not been marred by such instances of misconduct.

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

__jh____  ____hbo_  ___sp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043887	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010213	
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.	134.00	
2.		
3.		
4.		
5.		
6.