RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 December 2005
      DOCKET NUMBER:  AR20050012108


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Allen L. Raub                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of a Special Court-Martial Order from
his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that although he was exonerated and
found not guilty of all charges recorded in the court-martial order, the
fact that the document is filed in his OMPF is unjust to the advancement of
his military career.

3.  The applicant provides a copy of his OMPF Online:  My Records page,
dated 29 July 2005; Headquarters, XVIII Airborne Corps and Fort Bragg, Fort
Bragg, North Carolina, Special Court-Martial Order Number 4, dated 25
January 2005; and a letter, dated 26 July 2005, from the trial defense
attorney who represented the applicant at his court-martial.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the U.S. Army
on
18 October 2001.  The applicant holds military occupational specialty (MOS)
92Y (Supply Sergeant), is serving in the rank of sergeant/pay grade E-5,
and is currently assigned overseas serving in support of Operation Iraqi
Freedom.

2.  The applicant's records contain a copy of Headquarters, XVIII Airborne
Corps and Fort Bragg, Fort Bragg, North Carolina, Special Court-Martial
Order Number 4, dated 25 January 2005, which shows the applicant was
charged under Article 92 of the Uniform Code of Military Justice (UCMJ)
with three specifications for dereliction of duty.  This document shows
that the applicant pleaded not guilty to the charges and specifications and
was found not guilty of all the charges and specifications.

3.  The applicant provides a copy of his court-martial order, the OMPF
Online:  My Records page, and a letter from his defense counsel in support
of his application. The OMPF Online:  My Records page shows that the court-
martial order is listed as being filed in the restricted section of the
applicant's OMPF.  The letter from the applicant's defense attorney
provides information into the circumstances and events which led to the
applicant's court-martial, attests to the applicant's dedication to duty,
and supports removal of the court-martial order from the applicant's OMPF.


4.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.
This document states that only those documents listed in Table 2-1 and
Table
2-2 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.

5.  Table 2-1 (Composition of the OMPF) of this regulation shows that court-
martial orders are filed in the performance section when there is an
approved finding of guilty on at least one specification.  However, if all
approved findings are not guilty, the order is filed in the restricted
section of the OMPF.

6.  Army Regulation 600-8-104 also provides guidance concerning the access
and release of information in the Soldier's OMPF.  It states, in pertinent
part, that access will be given to Soldiers, or a person authorized by the
Soldier in writing, to documents filed in the performance, service, and
restricted sections of the OMPF.

7.  Paragraph 2-6 (Release of restricted data filed in the OMPF) of this
regulation provides strict guidelines on the release of information filed
in the restricted section of the OMPF and limits it to those government
agencies specifically identified in the paragraph.  This paragraph
provides, in pertinent part, that restricted data will not be given to any
other person or agency, without the approval of the Commanding General,
U.S. Army Human Resources Command or Department of the Army selection board
proponent.  This paragraph also contains a provision relevant to this case
which requires that disciplinary information filed in the restricted
section will be provided to sergeant major selection boards to ensure the
best qualified Soldiers are selected for these positions of highest trust.
However, this provision specifically states that, "The following
disciplinary information will not be provided to these boards:  any court-
martial order where all findings were not guilty (emphasis added); or all
charges or specifications were dismissed; or all findings of guilty were
reversed in a supplemental order; or the order was transferred to the
restricted fiche (section) by the ABCMR to correct an error or to remove an
injustice".







8.  The 2005 Fiscal Year Update to Army Regulation 601-20 (The Interservice
Physician Assistant Program (IPAP)) outlines the criteria for application
to the IPAP.  Paragraph 4 (Eligibility Criteria for Enlisted Members),
subparagraph b(27) provides, in pertinent part, instructions to delete the
current paragraph and replace with, "One copy of the Army Knowledge Online
(AKO) account Official Military Personnel File (OMPF) table of contents".
This paragraph also states, in pertinent part, "All applicants will include
documentation related to disciplinary actions that are permanently placed
in their records.  A copy of the OMPF can be obtained by accessing OMPF
through the AKO account and printing the records. The OMPF record printout
should be dated no earlier than 6 months prior to the application deadline
and must be certified by PSB/PSC".

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the court-martial order that is
filed in his OMPF should be removed because its display in his OMPF is
unjust to the normal advancement of his military career.  He also contends
that he does not feel truly exonerated in the matter, even though he went
through a lengthy judicial process and was found not guilty.  The applicant
also maintains that in support of his application for the Interservice
Physician Assistant Program, he is required to furnish a certified true
copy of his OMPF Online:  My Records page, which lists the court-martial
order, without benefit of the not guilty verdict and this places him at a
disadvantage.

2.  Evidence of records shows that the applicant initially received his
first reading of a proposed Field Grade Article 15 for charges originating
from an incident where a weapon was lost from the unit's Arms Room.  At the
time the weapon was lost, the applicant was on leave.  However, the brigade
commander directed that everyone who worked in the Supply Room be held
accountable.  The applicant, in consultation with counsel, decided to turn
down his Article 15 and demand trial by court-martial.  The brigade
commander preferred court-martial charges and the commander of the XVIII
Airborne Corps, Fort Bragg, North Carolina, referred the case to trial by
special court-martial.  However, the
XVIII Airborne Corps commander withheld the court-martial's authority to
adjudge a bad conduct discharge.  On 24 January 2005, the applicant was
found not guilty of the charge and its specifications.

3.  The independent evidence provided by the applicant, while providing a
viable argument, does not show there was an error made in the filing of the
court-martial order that would support removing it from his OMPF.  Evidence
of record shows that the court-martial order in question is properly filed
in the restricted section of the applicant's OMPF.
4.  However, the applicant does provide a viable argument that having this
court-martial order filed in his OMPF is unjust, in this instance.  The
Army regulation clearly specifies those government agencies that are
authorized access to information filed in the restricted section of the
OMPF.  However, in this case, the applicant is required (emphasis added) to
provide a copy of his OMPF Online:  My Records page as an enclosure to his
application for the Interservice Physician Assistant Program.  In doing so,
it follows that he is required to provide information from the restricted
section of his OMPF which would not normally be authorized for release to
the particular agency, unless the Soldier chose to authorize release of the
information.

5.  In reviewing this case, it is noted that the governing Army regulation
precludes the routine release of similar information to sergeant major
selection boards.  This is because it is recognized that in having filed
this information in the restricted section of the OMPF, a deliberate
official determination was made that the information should be kept
compartmentalized and protected from routine access by agencies and
activities because of the potential for the information to unfairly
influence the decisions of board members, personnel managers, commanders,
and other officials.  The applicant is in a very similar situation should
he choose to apply for the Interservice Physician Assistant Program because
releasing the information in the restricted section of his OMPF has the
potential of placing him at an unfair disadvantage in the selection
process.  Therefore, the document in question should be removed from the
applicant's Official Military Personnel File, in this case.

BOARD VOTE:

__SLP __  __MHM__  __ALR __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by deleting the Headquarters, XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina, Special Court-Martial Order Number 4,
dated 25 January 2005, from the applicant's Official Military Personnel
File.

2.  To ensure this decision results in no unintended harm to the individual
concerned, following completion of the administrative corrections directed
herein, the Record of Proceedings and all documents related to this appeal
will be returned to this Board for permanent filing.  The Record of
Proceedings and associated documents will not be filed in the individual's
OMPF.




                                  ___SHIRLEY L. POWELL___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012108                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051213                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |134.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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