RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070012886 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Gerald Purcell

Member

Mr. John Heck

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, in effect, removal of a flag (DA Form 268, Report to Suspend Favorable Personnel Actions) from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the flag is preventing his progression in the military service.  He tried to locate where or the type of flag from the available system but could not to find or determine what it was for.  He was only able to find that the flag was dated December 2007.  He assumed it refers to an incident that took place while he was on active duty serving in Afghanistan with the  
37th Engineer Battalion from Fort Bragg, North Carolina.  He states that the incident involved him and the first sergeant of Company C, 37th Engineer Battalion; as a result, he received a summarized Article 15 (non-judicial punishment).

3.  He further states that based on this information there is no reason for the flag to be in his records.  If the incident is the criteria for the adverse action to be inserted into his records, it should not be in his records because the punishment does not call for it.  The adverse action was secretly inserted without his knowledge and with the intent to harm and damage his service records.  The adverse action has no legal or justified reason to be in his records and he requests that his records be examined in order to have them removed.

4.  The applicant provides a copy of a written statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he entered active duty on  
2 October 1995.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 92G (Food Service Specialist).

2.  The applicant served his last significant duty assignment with Headquarters and Headquarters Company (HHC), 37th Engineer Battalion (CBT), Fort Bragg, North Carolina.  

3.  A review of the applicant's OMPF shows that he received an Article 15 on  
14 March 2002 for leaving his appointed place of duty without authority and for dereliction of duty.  The applicant's commander directed that the Article 15 be filed on the Performance Section of the OMPF.

4.  The applicant was honorably released from active duty on 11 June 2007 after serving 11 years, 8 months, and 10 days of Net Active Service This Period.

5.  The applicant's records show that he applied for Active Guard Reserve (AGR) duty.  However, his request was denied in accordance with Army Regulation
135-18 (Active Guard Reserve Program), Table 2-3: Nonwaivable disqualifications for entry into the AGR program.  His OMPF contains adverse information related to his active duty service.

6.  The applicant's OMPF does not contain a copy of the DA Form 268 referred to by the applicant.

7.  In the statement that the applicant submitted, it states, in effect, that his first sergeant made several derogatory comments towards him and at one point things got out of control where he and his first sergeant started raising their voice at each other and invading each others personal space in front of a senior noncommissioned officer (NCO).  (The incident described in this statement does not match the incident described in the Article 15 proceeding found in the applicant's OMPF).

8.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and determining the amount and nature of any punishment if punishment is appropriate.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket (MPRJ), the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that a flag, DA Form 268, should be removed from his OMPF.
2.  There is no evidence of a flag within the applicant's OMPF.  However, there is a copy of an Article 15 administered in 2002, which is filed in the Performance Section of the OMPF.

3.  Regulation guidance states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  The applicant has not provided any evidence or argument which would form the basis to remove a document that is properly filed.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WP ___  ___GP __  __JH ___  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.




_____ William Powers________
          CHAIRPERSON




INDEX

CASE ID
AR20070012886
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071127
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
134.00
2.

3.

4.

5.

6.