Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

Article 134 - Public Record Altering, Concealing, Removing, Mutilating, Obliterating or Destroying

Paragraph 99 of the Manual for Court Martial concerns altering, concealing, removing, mutilating, obliterating or destroying a public record.

The text of statute of Article 134 (the offense is given in a paragraph under Article 134) says that all neglects and disorders that are adverse to the discipline and good order in the armed forces, all conducts that will bring discredit to the armed forces, and offenses and crimes not capital, can be punished by convening a court martial.

Elements of the offense

  • The accused has altered, removed, mutilated, concealed, destroyed or obliterated or he took with the intention to alter, remove, mutilate, conceal, destroy or obliterate, a public record.
  • The accused's act was unlawful and willful.
  • In these circumstances, the accused's conduct was adverse to the discipline and good order in the armed forces or the nature of the act brought discredit to the armed forces.

Explanation for the offense

Public records refer to records, statements, reports, data compilations in all forms- of public agencies or offices, which have set forth the activities of the public agency or the office, or matters which have to be reported, as required by law. Classified matters are also included under public records.

Maximum punishment for the offense

Service members who are accused of committing this offense and who are held guilty at a court martial can be punished with a dishonorable discharge, forfeiture of allowances and pay and 3 years of confinement.

An example for how a soldier can be punished for this offense

There is a provision in the armed forces called the Suspension of Favorable Personnel Action or Flag. If a soldier is flagged, actions that are favorable to him, will be suspended, till the soldier has received proper training or the original action or incident is corrected or rectified.

When the status of the soldier changes from favorable to unfavorable, a flag is immediately initiated against him. Likewise, when his status changes to favorable from unfavorable, the flag in his personnel record is removed. After a soldier is flagged, he may be denied favorable actions like promotions, decorations and awards, re-enlistment, bonus payments, service extensions and more.

A soldier can have several flags in his record at one time. These flags are initiated by commanders and access to these flagging records are strictly controlled. The commanders have to review active flags every month. They also have to ensure that any soldier who is the subject of an investigation by a civilian or military authority is mandatory flagged.

Classified matter like personnel records are also public records and the offense under paragraph 99 of the Manual for Court martial is applicable to them. So it can apply to any service member who alters, conceals, removes, mutilates, obliterates or destroys a personnel record.

Here is a scenario. A service member may be working at a staff facility where personnel records are kept. It may so happen that he is able to access the personnel records, including his own.

This case is about a service member who was in that position. The service member was late to work on several occasions and so the commander had initiated a flag against him. Incidentally, he was working in the staff office where the flagging records had been stored. When the service member checked his file (he was not supposed to) he saw the flag. He lifted the flag that the commander had drawn against him, without authorization from the commander. Unluckily for him, the commander came to know about the incident. The service member was punished with a demotion in rank for tampering with his personnel record.

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