IN THE CASE OF:
BOARD DATE: 16 DECEMBER 2008
DOCKET NUMBER: AR20080017678
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 that Department of the Army Orders 181-123 and Department of the Army Orders 167-94 be expunged from his Official Military Personnel File (OMPF).
2. The applicant states, in effect, that these records should be expunged from his records due to the length of time that has passed since the orders were placed therein. He states that there is no supporting documentation as to why the orders were placed in his OMPF and he believes that these orders have slowed his career progression resulting in him not being fairly considered for promotion to sergeant first class.
3. The applicant provides in support of his application, a memorandum from his his commanding officer dated 9 November 2008 recommending that the applicant submit his request for removal of the above order to this Board.
CONSIDERATION OF EVIDENCE:
1. On 21 October 1994, the applicant enlisted in the Regular Army in Houston, Texas, for 3 years, in the pay grade of E-1. He remained on active duty through continuous reenlistments.
2. The available evidence shows that on 16 June 1998, Orders 167-94 were published promoting him from the rank of specialist to the rank of sergeant with an effective date of 1 July 1998. These orders indicate that the applicants promotion would not be valid and would be revoked, if he was not in a promotable status on the effective date of promotion.
3. On 30 June 1998, Orders 181-123 were published revoking or rescinding Order 167-94. The orders do not reflect the basis for revocation. However, Orders 167-94 and Orders 181-123 were filed in his OMPF.
4. Orders 201-76 were published on 20 July 1999, promoting the applicant from the rank of specialist to the rank of sergeant with an effective date of 1 August 1999.
5. On 7 June 2002, Orders 158-051 were published promoting the applicant from the rank of sergeant to the rank of staff sergeant with an effective date of
1 May 2002. He is currently a member of the RA serving in the rank of staff sergeant.
6. Army Regulation 600-8-14 prescribes the policies, operating tasks, and steps governing the creation and maintenance of the OMPF. It provides that the performance (P) section of the OMPF is used for filing performance, commendatory and disciplinary data. Documents placed on this section are limited to those that provide evidence of a Soldiers demonstrated performance. These documents are used for evaluation and selection purposes.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that fthe ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record the applicant must show 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 applicant's contentions have been considered. However, he has provided no evidence that shows Army Orders 181-123 and Department of the Army Orders 167-94 were erroneously filed in the performance section of his OMPF, as previously stated, the burden of proving an error or injustice by a preponderance of the evidence rests with the applicant.
3. The Army has an interest in maintaining the integrity of its records and the applicant has failed to provide evidence to show why the above orders should be removed from his OMPF.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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.
_______ _XXX _______ ___
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) AR20080017678
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ABCMR Record of Proceedings (cont) AR20080017678
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