| Mr. Carl W. S. Chun | Director | |
| Mr. Jessie B. Strickland | Analyst |
| Ms. Joann H. Langston | Chairperson | ||
| Ms. Regan K. Smith | Member | ||
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: In effect, the removal of a general officer letter of reprimand (GOLOR) and special court-martial order dated 7 April 1997 and a noncommissioned officer evaluation report (NCOER) ending in November 1996 from his Official Military Personnel File (OMPF), or as an alternative, that they be transferred to the restricted fiche of his OMPF.
APPLICANT STATES: That the intended purpose of those documents have been served because it has been over 6 years since the incidents occurred and he has had no subsequent disciplinary infractions. He also states that a review of his performance fiche will show that it was the only incident of a derogatory nature that has occurred in his 18 years of service. He further states that his records will also show that his service has been exemplary and he believes that the presence of those documents will have a discriminatory effect on selection boards and may restrict his potential for advancement.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted on 7 February 1985, for a period of 4 years, training as an electronic warfare signal intelligence morse interceptor, a $7,000 cash enlistment bonus and enrollment in the Army College Fund.
On 21 August 1985, while attending advanced individual training, nonjudicial punishment was imposed against him for falsifying a class sign-in record used for recording test results, by using someone else's name. His punishment consisted of a reduction to the pay grade of E-2 (suspended), a forfeiture of pay and extra duty. The imposing commander directed that the record of nonjudicial punishment be filed on the restricted fiche of his OMPF.
He has remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 1 November 1993.
On 21 November 1996, he was convicted by a special court-martial of wrongfully having sexual intercourse with a married woman who was not his wife and for fraternizing with a soldier under his supervision. He was sentenced to be reduced to the pay grade of E-6 and to be reprimanded.
On 1 December 1996, he received a relief for cause NCOER covering the period from February 1996 to November 1996.
On 10 August 1998, the applicant was notified that the Calendar Year 1998 Sergeant First Class/Advanced Noncommissioned Officer Course Promotion Selection Board had determined that he should be barred from reenlistment under the Qualitative Management Program (QMP) based on the presence of the special court-martial order and relief for cause NCOER in his OMPF. The applicant appealed the bar to reenlistment and his appeal was approved on 31 March 1999.
Army Regulation 600-8-104 serves as the authority for filing of documents in the OMPF. It states, in pertinent part, that when there is an approved finding of guilty on at least one specification, the court-martial order will be filed on the performance fiche of the OMPF. If all charges and specifications are dismissed or if all charges and approved findings are not guilty, the court-martial will be filed on the restricted fiche of the OMPF.
Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System. Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.
Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. 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.
2. The special court-martial order and the NCOER are properly filed in the applicant's OMPF and he has failed to show otherwise.
3. The Board has noted the applicant's contention that the documents in question have served their purpose and finds it to be without merit. The purpose of the court-martial order is to permanently document the offenses for which the applicant was convicted and the purpose of the NCOER is to document the applicant's performance and potential for the period covered by the report. Neither of those documents were placed in the applicant's OMPF for the purpose of teaching the applicant a lesson or serving as an incentive to overcome, with the expectation that they could be removed at a later date if his performance warranted.
4. While the applicant may have learned from his past mistakes, that in itself does not serve as a basis to move or remove documents from his OMPF that are properly filed.
5. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__jm____ ___jhl ___ ___rks __ DENY APPLICATION
| CASE ID | AR2002083650 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2003/07/17 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 328 | 134.0000/REM DER INFO |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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