RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070016258


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 negative DA Form 1059 (Service School Academic Evaluation Report) from her Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that she received a DA Form 1059 that shows she was released from the Primary Leadership Development Course (PLDC) for disciplinary reasons.  However, prior to her disenrollment, she was cleared of all alleged charges and was allowed to graduate and receive a favorable DA Form 1059.

3.  The applicant provided the following additional documentary evidence in support of her application:

	a.  DA Form 1059, dated 25 July 2001 (negative report).

	b.  DA Form 1059, dated 1 August 2001 (favorable report). 

	c.  Memorandum, dated 12 September 2001, Eighth Army Wightman Noncommissioned Officer (NCO) Academy, Camp Jackson, Korea, titled: Disciplinary Release from PLDC.

	d.  Certificate of PLDC completion, dated 1 August 2001 .

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 December 1998.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  She subsequently executed a series of reenlistments and was promoted to sergeant (SGT)/E-5 on 1 August 2001 and to SSG/E-6 on 1 December 2005.  

2.  The applicant’s records show that she attended PLDC, Class 08-01, at Eighth Army Wightman NCO Academy, Camp Jackson, Korea.  The duration of the course was from 3 July 2001 through 1 August 2001.

3.  On 25 July 2001, the applicant was “released from the course for violation of Article 112a of the Uniform Code of Military Justice (UCMJ), and violation of Academy Student Guide, Part V, Section 2d, Honor Code, for illegal distribution of a controlled substance.”  The DA Form 1059 she was issued shows the period of the academic report from 3 July 2001 through 25 July 2001.  This form also 

shows that she “failed to achieve course standards” and that “she did not demonstrate the academic potential for selection to higher level schooling/training.”

4.  On 1 August 2001, the applicant was issued a second DA Form 1059, for the same course, duration, and academy. This DA Form 1059 shows the period of the report from 3 July 2001 through 1 August 2001.  This form also shows she "achieved course standards” and “demonstrated the academic potential for selection to higher level schooling/training.”

5.  On 12 September 2001, by memorandum addressed to the applicant’s chain of command, the Commandant, Eighth Army Wightman NCO Academy, Camp Jackson, Korea, stated that a subsequent legal review of the applicant’s release revealed that Article 112a of the UCMJ did not properly address her actions.  Based on that information, the Commandant reconsidered the decision to release her from training and because she had completed all graduation requirements prior to her dismissal, she was declared a graduate of the course.  The Commandant further stated that a new DA Form 1059 and certificate were issued and filed in the applicant’s OMPF.

6.  Both DA Forms 1059 were received by the Human Resources Command (HRC) Indianapolis (formerly known as the U.S. Army Enlisted Records and Evaluation Center, or USAEREC) and were filed in the Performance "P" fiche section of the OMPF.

7.  Army Regulation (AR) 600-8-104 (Military Personnel Information Management/Records) prescribes policy, tasks, steps, and rules for military personnel information management, to include personnel records.  It states, in pertinent part, that only those documents listed in tables 2–1 and 2–2 are authorized for filing in the OMPF.  Depending on the purpose, the documents will be filed in one of three sections.  

	a.  The performance (P) fiche is used for filing performance, commendatory, and disciplinary data.  The P fiche is routinely used by career managers and selection boards.  Documents placed on this fiche are limited to those that provide evidence of a Soldier’s demonstrated performance.  These documents are used for evaluation and selection purposes.  This fiche is divided into a performance (P) section and a commendatory and disciplinary (CD) section.  Documents will not be obliterated or moved from the P fiche unless directed by an authority authorized to correct or move documents filed on the P fiche.  

	b.  The service (S) fiche is the OMPF section where general information and service data are filed.  The fiche is divided into a service computation (SC) section and a general administration (GA) section.  Documents filed on this fiche are those that must be permanently kept to record a Soldier’s military service, manage a Soldier’s career, and protect the interests of the Soldier and the Army.

	c.  The restricted (R) fiche is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this fiche is controlled.  Documents on this fiche are those that must be permanently kept to maintain an unbroken, historical record of a Soldier’s service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF; record investigation reports; record appellate action; and protect the interest of the Soldier and the Army.

8.  Table 2-1 of AR 600-8-104 states that the DA Form 1059 will be filed in the performance section of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from a fiche or moved to another part of the fiche unless directed by selected agencies such as the Army Board for Correction of Military Records (ABCMR), the Department of the Army Suitability Evaluation Board (DASEB), Army appeal boards, and the OMPF custodian when documents have been improperly filed.

9.  Article 112a of the Uniform Code of Military Justice concerns the "wrongful use, possession, etc., of controlled substances."  It provides:

	a.  Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports form the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct.

	b.  The substances referred to in subsection (a) are the following:

(1) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamephetamine, penecyclidine, barbituric acid, and marijuana, and any compound or derivative of any such substance.

(2) Any substance not specified in clause (1) that is listed on a scheduile of controlled substances prescribed by the President for the purposes of this article.

(3) Any other substance not specified in clause (1) or contained on a list prescribed by the President under clause (2) that is listed in Schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

10.  AR 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports, including Academic Evaluation Reports, or AERs. Paragraph 3-18 states, "Academic evaluations report the accomplishments, potential, and limitations of individuals while attending courses of instruction or training.  Only one AER will be authorized for each reporting period."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from PLDC Class 08-01 on 25 July 2001 as a disciplinary release for a violation of Article 112a, UCMJ, for unauthorized distribution of a controlled substance.  As a result, she was issued a negative DA Form 1059, dated 25 July 2001, which is filed in her P fiche.

2.  A subsequent legal review opined that Article 112a did not appropriately address the applicant's actions.  Based on this information, the NCO Academy Commandant reconsidered the decision to release her from the course, and because she had completed all graduation requirements prior to her dismissal, she was declared a graduate of the course and was issued a new DA Form 1059 attesting to her graduation.  This DA Form 1059, dated 1 August 2001, is also filed in her P fiche.

3.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

4.  With respect to the applicant's request, there is no doubt that after her mishap as a young Soldier in 2001, she has rebounded in an outstanding manner as evidenced by her excellent NCO Evaluation Reports; superior service school academic evaluation report at the Basic Noncommissioned Officer Course; and promotion to SGT/E-5 and SSG/E-6.


5.  The applicant's date of rank to SSG/E6 is 1 December 2005.  She will be in the primary zone for consideration for promotion to SFC/E-7 in the near future.  However, the existence of this "negative DA Form 1059" in the performance section of her OMPF is a detractor that sticks out as soon as her records are reviewed.  Furthermore, pertinent Army regulations require that only one evaluation report may be authorized for a given reporting period.  Therefore, in the interest of justice and in accordance with regulatory policy, the applicant is entitled to the requested relief.

BOARD VOTE:

__jev___  __tmr___  __jcr___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 removing the DA Form 1059, dated 25 July 2001, from her Official Military Personnel File.




							James E. Vick
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.