ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20180014237 APPLICANT REQUESTS: transfer of the DD Form 2329 (Record of Trial by Summary Court-Martial (SCM)), dated 26 April 2005, from the performance folder to the restricted folder of his Army Military Human Resource Record (AMHRR) or its complete removal. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-Authored Memorandum * DD Form 2329 * Memorandum, undated * Enlisted Record Brief * two Bronze Star Medal Certificates * two Defense Meritorious Service Medal Certificates and one order * two Meritorious Service Medal Certificates * Army Commendation Medal Certificate * Medal for Distinguished Achievement Certificate * Order of Horatio Gates Bronze Medal Certificate * DA Form 2166-9-2 (Noncommissioned Officer Evaluation Report (NCOER)) (currently in effect) and/or DA Form 2166-8 (NCOER, prior edition) (14 total) FACTS: 1. The applicant states: a. Army Regulation 600-37 (Unfavorable Information) allows for the transfer of a SCM to the restricted folder of the AMHRR when it has served its intended purpose, it has been in the AMHRR for at least 1 year since imposition, the Soldier is at least a staff sergeant, the Soldier has received at least one NCOER since filling of the SCM, and transfer is in the best interest of the Army. He meets the administrative requirements for transfer the SCM to the restricted folder of his AMHRR. b. The intent of the punishment since filing the SCM has been served. The basis for the SCM centered on him signing his company commander's signature on a travel voucher. He did not defraud the Defense Finance and Accounting Service and was not found guilty. c. He grew immensely, both professionally and personally, since the incident. The SCM fortified his resolve to reevaluate the decisions and the path he was taking in his life. He owes his progression to the costly valuable lesson learned over 13 years ago. His NCOERs and Enlisted Record Brief show his consistent performance above U.S. Army standards, which surpasses that of his peers and resulted in his selection for promotion to master sergeant/E-8 with a date of rank of 1 February 2012. d. He continuously makes a point to share his story with younger Soldiers and his peers in order to serve as an example of how one mistake can derail your professional and personal lives. In addition, he is proof that anyone can push through his or her problems, improve his or her judgement, and realign his or her priorities. e. He has dedicated his life to the Army and his country and cannot imagine a career in a different field of work. He compromised his integrity and the Army for which he has never stopped being sincerely sorry. The Army has given him purpose in life which is greater than he could ever have ever imagined. His actions on the night in question completely discredited the values he learned to live by. He has not committed any instances of disciplinary actions since and consistently pushes himself as hard and far as possible, always seeking tough assignments and missions. f. Removal of the SCM from his AMHRR would be in the interest of the Army as it would allow him to continue his service to his country in the best possible positions. He performed in positions as the senior human resources sergeant for a special forces group, the first sergeant for the Military Entrance Processing Command, and the senior human resource sergeant and adjutant with the 2nd Battalion, 7th Special Forces Group (Airborne). His successes and accomplishments include his: * selection for duties and positions rated above his grade on a regular basis * service as the support operations sergeant major while stationed in South Korea, having been handpicked by the 19th Expeditionary Sustainment Command Sergeant Major due to his overall leadership * selection in 2007 as the Adjutant General's NCO of the Year and recipient of the Sergeant Major Larry L. Strickland Medal for distinguished achievement * two deployments to Afghanistan in support of Operation Enduring Freedom * receipt of the following awards – * Major General Horatio Gates Bronze Medal * two Bronze Star Medals * two Meritorious Service Medals * two Defense Meritorious Service Medals * Master Parachutist Badge 2. He is currently serving on active duty assigned to Headquarters and Headquarters Company, 10th Special Forces Group (Airborne), Fort Carson, CO. 3. His AMHRR contains the DD Form 2329, dated 20 April 2005, which shows he was charged with violating Article 123 (Forgery) of the Uniform Code of Military Justice (UCMJ) and was found guilty. He was also charged with violating Article 132 (Fraud) of the UCMJ and was found not guilty. 4. He was promoted to the rank/grade of master sergeant/E-8 effective 1 February 2012. 5. His records show he was awarded or authorized the: * National Defense Service Medal (2nd Award) * Army Achievement Medal (4th Award) * Overseas Service Ribbon * Noncommissioned Officer Professional Development Ribbon with Numeral 3 * Driver and Mechanic Badge * Armed Forces Expeditionary Medal * Army Commendation Medal (4th Award) * Army Service Ribbon * Drill Sergeant Badge * Master Parachutist Badge * Army Good Conduct Medal (2nd Award) * Global War on Terrorism Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Sergeant Major Larry L. Strickland Medal for Distinguished Achievement * Major General Horatio Gates Bronze Medal * Bronze Star Medal (2nd Award) * Meritorious Service Medal (2nd Award) * Defense Meritorious Service Medal (2nd Award) 6. His records contain 14 NCOERs evaluating him from May 2005 through July 2018, in which he was rated for overall potential for promotion and/or service in positions of greater responsibility as "Among the Best" or "Most Qualified" and "Highly Qualified" once with supporting comments. His senior raters found his overall performance and potential for promotion merited "Successful" and "Superior" ratings respectively. 7. 10 U.S.C. § 1552 - U.S. Code - Unannotated Title 10. Armed Forces § 1552. Correction of military records: ?claims incident thereto sets forth the limitations of all military boards including the Army Board for the Correction of Military Records. 1(f) With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)), action under subsection (a) may extend only to-- (1) correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)); ?or (2) action on the sentence of a court-martial for purposes of clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found no basis to grant relief. In accordance with AR 600-8-104, the proper filing of the Special Court Martial record is in the applicant’s performance AMHRR. The Board found that the applicant’s contention that transfer of the DD Form 2329 (Record of Trial by Summary- Court Martial (SCM)) from the performance to restricted section of the OMPF, or complete removal, is warranted per Army Regulation (AR) 600-37 is unmeritorious. AR 600-37, paragraph 7-2 (in effect when the applicant received the SCM as well as now) states that this regulation does not apply to documents that have their own regulatory appeal authority, such as records of courts-martial. The criteria for removal or transfer of derogatory information do not apply in the applicant’s case. Further, AR 600-8-104 (in effect then and now) directs that DD Forms 2329 will be filed in the performance section of the OMPF where there is an approved finding of guilty on at least one specification. As there is an approved finding of guilty in this case, the Board found it is appropriately filed in the applicant’s OMPF. The Board determined that the applicant has not demonstrated by a preponderance of the evidence why the presence of the DD Form 2329 in the performance section of the OMPF constitutes error or injustice warranting relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the merits of this case provide no basis for granting the applicant’s request. Therefore the Board made no recommendation for relief. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. 10 U.S.C. § 1552 - U.S. Code - Unannotated Title 10. Armed Forces § 1552. Correction of military records: ?claims incident thereto sets forth the limitations of all military boards including the Army Board for the Correction of Military Records. 1(f) With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)), action under subsection (a) may extend only to-- (1) correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)); ?or (2) action on the sentence of a court-martial for purposes of clemency. 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests 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. Chapter 7 provides for appeals and sets forth the policies and procedures whereby a person may seek removal of unfavorable information from his or her AMHRR, or transfer of unfavorable information from the performance file to the restricted folder of his or her AMHRR. This regulation does not apply to documents that have their own regulatory appeal authority, such as evaluation reports or records of courts-martial. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR. Appendix B provides the documents required for filing in the AMHRR and/or Interactive Personnel Electronic Records Management System (iPERMS). All documents approved by the Department of the Army and required for filing in the AMHRR and/or iPERMS will be updated quarterly and posted on the U.S. Army Human Resources Command Army Soldiers Records Branch web site and the S-1 Net on Milbook Website. This list shows the DD Form 2329 is filed in the performance folder when there is an approved finding of guilty on at least one specification.