IN THE CASE OF: BOARD DATE: 20 October 2010 DOCKET NUMBER: AR20100012002 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 a DA Form 4430 (Department of the Army Report of Result of Trial) be corrected to show Article 112a instead of Article 125(a). 2. The applicant states, in effect: * The DA Form 4430 cites Article 125(a) (sodomy) when it should cite Article 112a (possession of a controlled substance) * He might be improperly prejudiced by reason of the annotation by local, state, or federal authorities and employers who utilize this information in consideration for employment purposes 3. The applicant provides: * Letter, dated 12 March 2010, from the Disabled American Veterans * DA Form 4430 * DD Form 2329 (Record of Trial by Summary Court-Martial) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 21 August 2001 and served as a signal support systems specialist in Kuwait/Iraq. 3. Records show on 30 September 2005, contrary to his plea, the applicant was convicted by a summary court-martial of Article 112a (wrongful use, possession, etc., of controlled substances). He was sentenced to be confined for 7 days, reduced to E-3, to forfeit 2/3 pay for 1 month, and to perform extra duty for 30 days. On 3 October 2005, the convening authority approved the sentence. 4. Item 3 (Summary of offenses, pleas, and findings) of the applicant's DA Form 4430 shows the entry "125(a)" in the ART/UCMJ [Article/Uniform Code of Military Justice] section. 5. On 9 December 2005, the applicant was discharged for misconduct (commission of a serious offense). 6. The applicant's DA Form 4430 is not independently filed on the interactive Personnel Electronic Records Management System (iPERMS). However, it is an attachment to his discharge package filed in the military personnel records jacket and the service and restricted sections. 7. The UCMJ and Manual for Courts-Martial (MCM) govern the U.S. military justice system. The UCMJ does not show "Article 125(a)" as an authorized Article. The UCMJ and the 2008 Edition of the MCM state the offense(s) for Article 112a is wrongful use, possession, etc., of controlled substances and the offense for sodomy is Article 125. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention tht the DA Form 4430 cites Article 125(a) when it should cite Article 112a has merit. 2. Since Article 125(a) is not an authorized Article in the UCMJ, and the evidence of record shows the applicant was convicted of Article 112a (wrongful use, possession, etc., of controlled substances), his DA Form 4430 should be corrected to show Article 112a in item 3. BOARD VOTE: __X_____ ___X____ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 3 of the DA Form 4430 to show Article 112a in the ART/UCMJ section. __________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) AR20100012002 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100012002 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1