IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150016649 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150016649 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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. IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150016649 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 that Special Court-Martial Order Number 9, issued by Headquarters, Fort Bliss, on 23 March 2011, be removed from his record. 2. The applicant states he does not deny the charges. He was confined for 3 months and he was reduced from pay grade E-6 to pay grade E-4. He has not been able to gain suitable employment since the incident. He was discharged with full honors and retired with full benefits. 3. The applicant provides: * Certificate of Appreciation * Army Commendation Medal (ARCOM) Certificates, dated 24 January 2006 and 18 February 2008 * DA Form 2166-8 (NCO Evaluation Report) for the period 1 January 2009 through 31 December 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 February 2014 * résumé 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 for 3 years on 5 November 1992. He completed training as a cannon crewmember. He remained on active duty through continuous reenlistments and he was promoted through the ranks to pay grade E-6. 3. The complete facts and circumstances pertaining to the applicant's special court-martial are not available. However, the performance folder of the applicant's official military personnel file (OMPF) contains Special Court-Martial Order Number 9, issued by Headquarters, Fort Bliss, on 23 March 2011. The order shows that on 26 October 2010, he was convicted by a SPCM of unlawfully striking a child under the age of 16 years on the shoulder and on the face with his hand. He was sentenced to 4 months of confinement and reduction to pay grade E-4. 4. On 28 February 2013, the applicant retired in pay grade E-4 due to completing sufficient service for retirement. He completed 20 years and 19 days of net active service. 5. The applicant provides a Certificate of Appreciation for his service in the Armed Forces of the United States and two ARCOM Certificates for meritorious service. He provides a copy of his DA Form 2166-8 for the period covering 1 January 2009 through 31 December 2009, which shows he received a top block rating during that rating period. He also provides a copy of his résumé. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. It states: a. 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. b. Unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or in part. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record, which includes the OMPF. The Army Soldier Records Branch, U.S. Army Human Resources Command, supplements this regulation with a regularly updated list of documents required for filing in a Soldier's record. This list states that special court-martial orders will be filed in the OMPF in accordance with the following instructions: a. File in the performance folder when there is an approved finding of guilty on at least one specification. b. If all approved findings are not guilty, file the order in the restricted folder. c. 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. DISCUSSION: The performance folder of the applicant's OMPF contains Special Court-Martial Order Number 9, which shows he was found guilty of unlawfully striking a child. The finding of guilt was the basis for filing the order in the performance folder. There is no evidence of error in the filing of this document. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016649 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016649 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2