BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016133 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 BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016133 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. BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016133 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 the removal of General Court-Martial Order Number 29, dated 8 July 1999, from his official military personnel file (OMPF). 2. The applicant states: * his request is in the interest of equity, fairness, and justice; the conviction was minor and it offsets his ability to exercise his rights and livelihood * the conviction no longer serves any purpose other than denying him opportunities for employment and a security clearance * the conviction occurred some 17 years ago and resulted in a reprimand and a forfeiture of pay * he was young when the incident occurred; he is now more mature and is a respected citizen and a leader in his church 3. The applicant provides: * General Court-Martial Order Number 29 dated 8 July 1999 * Appellate review dated 26 October 2006 CONSIDERATION OF EVIDENCE: 1. Having had prior service in the Guam Army National Guard (GUARNG), the applicant enlisted in the Regular Army on 29 March 1988. He held military occupational specialty 31R (Multichannel Transmission Systems Operator). 2. He served through two reenlistments in a variety of stateside or overseas assignments and he was promoted to sergeant (SGT)/E-5. 3. On 18 August 1998, he was arraigned and tried at a general court-martial at Headquarters, V Corps, Darmstadt, Germany, for violating the Uniform Code of Military Justice as follows: * Charge I, Article 120, one specification of raping a female private * Charge II, Article 134, one specification of committing adultery and one specification of committing an indecent assault upon a female private * Charge III, Article 107, two specifications of making false statements to the U.S. Army Criminal Investigation Command 4. The court found him guilty of the second specification of Charge II, substituted to read committing indecent acts with another, and sentenced him to a reprimand and a forfeiture of $1,250 per month for 2 months. 5. He was honorably discharged from active duty on 21 January 1999 by reason of completion of his required service. 6. General Court-Martial Order Number 29, dated 8 July 1999, shows the convening authority approved the sentence and ordered it executed. The applicant was reprimanded for misconduct and failing to embrace the values expected of a Soldier. 7. On 9 September 1999, by letter, the Chief, Examinations and New Trials Division, U.S. Army Judiciary, notified the applicant that his office completed the appellate examination of General Court-Martial Number 29, dated 8 July 1999. The record of trial contained sufficient legal and competent evidence to support the approved finding of guilty and the sentence. As a result, the findings and sentence in his case were final. The court-martial order and letter are filed in the performance section of his OMPF. 8. On 8 May 2001, the applicant enlisted in the GUARNG. He served through multiple extensions, in a variety of assignments, including several periods of active duty mobilizations, and he attained the rank/grade of sergeant first class (SFC)/E-7. 9. He entered active duty on 13 December 2008 in an active guard reserve status. He ultimately retired on 31 March 2014 and was placed on the retired list in his retired rank/grade of SFC/E-7 on 1 April 2014. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) governs the composition of the OMPF and states the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 2. The Army Personnel Records Division (APRD), U.S. Army Human Resources Command, updates the list of Authorized Documents for filing in the AMHRR quarterly. The new list of Authorized Documents will supersede the list in Table B-1, Appendix B of Army Regulation 600-8-104. The filing instructions of a summary, special, or general court-martial are: * File in the Performance folder when there is an approved finding of guilty on at least one specification * If all approved findings are not guilty, file the order in the restricted folder * 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: 1. The purpose of maintaining the OMPF is to protect the interests of both the Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF. 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. 2. 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. 3. It is acknowledged the applicant has rebounded from his serious infraction in 1999 in an outstanding manner as evidenced by his enlistment in the ARNG, promotion to SFC, and multiple periods of active duty. Nevertheless, the Army has an interest in maintaining the accuracy of its records. The information in those records must reflect the conditions/circumstances that existed at the time the records were created. 4. There is generally a reluctance to remove adverse information from an OMPF when it is correct and properly filed. In this case, there is no evidence of error in the document in question and it is properly filed in the applicant's OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016133 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016133 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2