IN THE CASE OF:	  

* 		BOARD DATE:	  8 June 2010 

		DOCKET NUMBER:  AR20090018531 


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 his DA Form 1059 (Service School Academic Evaluation Report (AER)) be removed from his official military personnel file (OMPF).

2.  The applicant states the contested AER blemishes his official records, possibly preventing him from advancement.  Further, the judicial system later dismissed the driving while intoxicated charge and the report is a negative mark on his record for what is, in fact, an isolated incident.

3.  The applicant provides a notarized copy of his application to set aside judgment, dated 22 August 2005, and the contested AER for the period 4 April 2005 to 13 June 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a Regular Army sergeant/E-5 in military occupational specialty  96D (Imagery Specialist) failed to achieve course standards while attending the Tactical Exploitation Systems Course at Fort Huachuca, Arizona, due to a driving under the influence (DUI) conviction.

2.  The contested AER states his leadership was unsatisfactory and he was "administratively relieved from the course 23 May 05 due to DUI conviction on 23 May 2005.  Demonstrated poor judgment as the designated driver of two junior enlisted."

3.  On 16 August 2005, the applicant applied to have the DUI conviction set aside and on 22 August 2005 his application was approved.

4.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies and procedures for managing personnel records.  Only those documents listed in table 2-1 (Composition of the OMPF) and 
table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.  Table 2-1 shows AER's are filed in the performance section of the OMPF unless transfer is authorized to the restricted section.

5.  Paragraph 2-3 of Army Regulation 600-8-104 states that 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 information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the contested AER removed from his OMPF was carefully considered; however, the request should be denied.

2.  Although the applicant's DUI conviction was later set aside, it does not negate the fact that his initial conviction led to his administrative release from school.

3.  According to the governing regulation, the contested AER is properly filed in the applicant's OMPF. 

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  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 that 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.

ABCMR Record of Proceedings (cont)                                         AR20090018531



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ABCMR Record of Proceedings (cont)                                         AR20090018531



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