IN THE CASE OF: 

		BOARD DATE: 20 January 2023

		DOCKET NUMBER: AR20220001903


APPLICANT REQUESTS: correction of his military service record for the following:

*	Removal of all Court-Martial records
*	Promotion to the rank/grade of sergeant first class (SFC)/E-7 with back pay
*	A personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Army Board for Correction of Military Records (ABCMR) Acknowledgement 
Letter, 4 March 2022
*	Congressional Privacy Release Form
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 
20 November 1983

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code 
(USC), section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states in pertinent part that his Court-Martial investigations were 
conducted by his battalion Command Sergeant Major who was the Grand Supreme 
Wizard of the Ku Klux Klan (KKK) of all 7th Army in Germany in 1969. Due to this, he 
was advised by family not to appeal the decision for fear of danger of backlash from the 
KKK.

3.  A review of the applicant's available service records reflects the following:

	a.  On 20 June 1972, he enlisted in the Regular Army (RA) for a period of 3 years 
and on 8 September 1975, he reenlisted in the RA for 6 years at the rank/grade of 
specialist five (SP5)/E-5.

	b.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows in:

*	Item 18 (Appointments and Reductions), the applicant was promoted to the 
rank/grade of staff sergeant (SSG)/E-6 on 28 May 1977
*	item 5 (Oversea Service) reflects service in Germany from 17 November 
1973 to 29 March 1975 and 14 September 1980 to 20 December 1982

   c.  On 23 September 1980, the Department of the Army, U.S. Army Regional 
Personnel Center, Grafenwoehr issued Orders Number 227-5 discharging him from the 
Regular Army at the rank of SSG, for immediate reenlistment.

	d.  On 24 September 1980, he reenlisted in the Regular Army for a period of 3 years, 
at the rank of SSG.

	e.  On 13 April 1981, he was convicted by a special court-martial of one specification 
of assault on a German national (female) by striking her on the head with a dangerous 
weapon, to wit: a large silver colored wrench. The court sentenced him to reduction to 
specialist four/E-4, extra duty, and forfeiture of pay. The convening authority approved 
the sentence on 12 May 1981

	f.  On 21 December 1982, he was convicted by a general court-martial of one 
specification of assault and battery (unlawfully striking H-. G- about the head with his 
hand and expose his privates to her). The court sentenced him to reduction to the 
lowest enlisted grade of E-1, forfeiture of pay for 6 months, and confinement for 6 
months. The convening authority approved the sentence on 25 January 1983. 

	g.  On 17 February 1983, the Department of the Army, U.S. Army Correctional 
Activity, Fort Riley, KS, issued General Court-Martial Order Number 34 for the 
unexecuted portion of the approved sentence to confinement at hard labor for 6 months.

	h.  On 5 April 1983, the Department of the Army, United States Army Correctional 
Activity, Fort Riley, issued General Court-Martial Order Number 94 for the unexecuted 
portion of the approved sentence to forfeiture of $382.00 pay per month for 6 months. 

	i.  On 22 August 1983, the Department of the Army, U.S. Army Correctional Activity, 
Fort Riley, issued Orders Number 162-3 discharging him from the Regular Army, 
effective 20 November 1983 at the rank/grade of PVT/E-1.

	j.  On 24 August 1983, the Department of the Army, U.S. Army Correctional Activity, 
Fort Riley, issued Orders Number 164-5 amending Orders Number 162-3 to reflect a 
change in rank of PVT to Private (PV2)/E-2. 

   k.  The applicant’s DD Form 214, ending on 20 November 1983 reflects an 
honorable discharge at the rank of PV2 for expiration term of service. Item 12 (Record 
of Service) reflects active duty service this period from 24 September 1980 to 20 
November 1983 with a net active service this period of 3 years, 0 months, and 0 days.

	l.  His service record is void of Orders promoting him to the rank of SFC/E-7.

4.  The applicant provides Congressional Privacy Release Form authorizing 
Congressman to receive information from the proper officials and all Federal Agencies 
regarding his concerns. 

BOARD DISCUSSION:

1.  The applicant's request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision. As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.

2.  The applicant was twice convicted by a special and a general court-martial. In each 
case, he was found guilty. The purpose of maintaining the OMPF is to protect the 
interests of both the U.S. 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 placed in the OMPF, the document becomes a permanent part of that file and will 
not be removed from or moved to another part of the OMPF unless directed by an 
appropriate authority. The Army has an interest in maintaining the accuracy of its 
records. The information in those records must reflect the conditions and circumstances 
that existed at the time the records were created. As required by the applicable 
regulation, the court-martial order(s) is/are properly filed in the applicant's OMPF. The 
Board did not find an error or injustice.

3.  The applicant was initially reduced from E-6 to E-4 and then on his second 
conviction, he was reduced to private. The Board found no evidence of his selection to 
SFC by a centralized board. He was discharged in the grade of private and he does not 
qualify for promotion consideration to E-7. 



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 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.

	
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.






REFERENCES:

1.  Title 10, USC, 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 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.

2.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process. In accordance with Title 10, USC, section 1552, the authority under 
which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it 
is only empowered to change the severity of the sentence imposed in the court-martial 
process and then only if clemency is determined to be appropriate. Clemency is an act 
of mercy or instance of leniency to moderate the severity of the punishment imposed.

3.  Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) Chapter 4-1 
(Centralized Promotions (Sergeant First Class, Master Sergeant, and Sergeant Major)) 
states:

	a.  The Commanding General, Army Human Resources Command promotes 
Soldiers to the ranks of SFC, Mater Sergeant (MSG) and Sergeant Major (SGM). 

	b.  A centralized promotion system has been in effect for promotion of Regular Army 
enlisted Soldiers since 1 January 1969 for SGM, 1 March 1969 for MSG, and 
1 June 1970 for SFC. 

	c.  The centralized promotion system produces an annual promotion selection list of 
best qualified Soldiers for promotion to the next higher rank. The intent and purpose of 
the selection list is to provide the Army a means to promote Soldiers, on a monthly 
basis, to satisfy personnel manning requirements by skill and grade.

4.  AR 635-5 (Separation Documents) in effect at the time prescribes the separation 
documents that must be prepared for soldiers on retirement, discharge, release from 
active duty service, or control of the Active Army. The DD Form 214 is a summary of a 
Soldier's most recent period of continuous active duty. It provides a brief, clear-cut 
record of active duty service at the time of release from active duty, retirement, or 
discharge. Item 4a (Grade, Rate or Rank) list the Service Member's rank at the time of 
separation.

5.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in 
its discretion, hold a hearing or request additional evidence or opinions. Additionally, it 
states in paragraph 2-11 that applicants do not have a right to a hearing before the 
ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice 
requires. 

6.  AR 600-8-104 (Military Personnel Information Management/ Records) provides the 
principles of support, standards of service, policies, tasks, rules, and steps governing all 
work required to support maintaining the OMPF. Chapter 2 provides detailed guidance 
and instructions with regard to the initiation, composition, maintenance, changing, 
access to, and transfer of the OMPF. Table 2-1 (Composition of the OMPF) shows that 
general court-martial orders are filed in the performance section of the OMPF when 
there is an approved finding of guilty on at least one specification. If all approved 
findings are not guilty, the order is filed in the restricted section of the OMPF.

7.  AR 600-8-104 states the restricted section of the OMPF is used for historical data 
that may normally be improper for viewing by selection boards or career managers.  
The release of the information in the restricted section is controlled and not routinely 
released to promotion selection boards. This Army regulation also states that 
documents authorized for filing in the restricted section are those that must be 
permanently kept to maintain an unbroken, historical record of a Soldier's service, 
conduct, duty performance, and evaluation periods; and corrections to other parts of the 
OMPF. It also serves to protect the interests of the Soldier and the Army.




//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220001903


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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