IN THE CASE OF:	  

		BOARD DATE:	  	  21 January 2009

		DOCKET NUMBER:  AR20080017898 


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, in effect, removal of the Article 15 and Department of the Army Suitability Evaluation Board (DASEB), Record of Proceedings that are filed in his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, he received the Article 15 when he was a newly appointed second lieutenant.  He also states that the Article 15, along with 97 pages of supporting documents, took 29 months to be posted to his OMPF.  He further states that the brigade commander did not have the authority to file these documents in the performance section of his OMPF and the strategic filing of these unfavorable documents suggests a malicious attempt to halt his career progression.

3.  The applicant provides a copy of DASEB, Record of Proceedings, dated
9 October 2008, Docket Number AR20080009345, and three DA Forms 67-9 (Officer Evaluation Reports (OERs)) with through dates of 11 May 2007,
12 September 2007, and 30 June 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Army National Guard of the United States on 24 October 1997 for a period of 8 years. On 13 May 2004, he was appointed as a Reserve commissioned officer in the rank of second lieutenant.  The applicant was promoted to the rank of captain effective 1 February 2008.
2.  The applicant's military personnel records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 25 October 2005, with Continuation Sheet.  This document shows:

     a.  on 21 October 2005, the Commander, 3rd Brigade (Stryker Brigade Combat Team), 2nd Infantry Division, Fort Lewis, Washington, notified the applicant of his intent to impose non-judicial punishment upon him for, on or about 18 August 2005, without authority, willfully disobeying a lawful command from his superior commissioned officer to report to the Expert Infantryman Badge (EIB) site, this in violation of Article 90, UCMJ; for, on or about 24 August 2005, without authority, willfully disobeying a lawful command from his superior commissioned officer to report to the EIB site, this in violation of Article 90, UCMJ; and for, on or about 18 August 2005, with intent to deceive, making an official statement to his superior commissioned officer, a statement which was totally false, this in violation of Article 107, UCMJ;

     b.  on 25 October 2005, the applicant affixed his signature in Item 3 of the
DA Form 2627 indicating that he did not demand trial by court-martial; he requested a closed hearing; a person to speak in his behalf was not requested; however, matters in defense, mitigation, and/or extenuation would be presented in person.  Following a closed hearing where all matters presented in defense, mitigation, and/or extenuation were considered, the commander affixed his signature in Item 4 of the document directing the applicant's restriction for
30 days to the limits of place of duty, worship, medical, dental, dining facility, and any place of recreation.  The document is absent any reference to a written reprimand; and

     c.  Item 5 of this document shows the commander directed that the DA Form 2627 be filed in the performance section of the applicant's OMPF.  The applicant affixed his signature in Item 7 and also indicated with his initials that he did not appeal the Article 15.  Item 11 (Allied Documents and/or Comments) contains the entries, "1. Counseling statements" and "2.  15-6 Investigation."

     d.  The DA Form 2627 and Continuation Sheet are filed in the restricted section of the applicant’s OMPF.  The allied documents identified in Item 11 of the DA Form 2627 are not filed in the applicant's OMPF.

3.  The applicant's military personnel records contain a copy of Headquarters, Department of the Army, Army Special Review Boards, Arlington, Virginia, memorandum, dated 28 October 2008, subject:  Resolution of Unfavorable Information for - [Applicant's Rank, Name, and Social Security Number], AR2008009345.  This document shows that the DASEB approved the transfer of the DA Form 2627, dated 25 October 2005, and all related documents from the performance section to the restricted section of the applicant's OMPF.

     a.  The memorandum also provides, in pertinent part, "[i]t is further requested that a copy of this memorandum, the enclosed Record of Proceedings, and the enclosed appeal correspondence be placed on the Soldier's restricted fiche."

     b.  The enclosed DASEB Record of Proceedings, in pertinent part, directed removal of the words "[w]ritten reprimand to be filed in the performance fiche" from the DA Form 2627; the DA Form 2627 be transferred to the restriction section of the OMPF; and removal of all 97 pages of allied documents filed in the in restricted section of the OMPF.

     c.  The DASEB memorandum is filed in the restricted section of the applicant's OMPF.  The DASEB Record of Proceedings and appeal correspondence are not filed in the applicant's OMPF.

4.  In support of his application, the applicant provides the following documents.

     a.  DA Form 67-9 for the period from 12 May 2006 through 11 May 2007.  This document is not filed in the applicant's OMPF.

     b.  DA Form 67-9 for the period from 12 May 2006 through 12 September 2007.  This DA Form 67-9 is filed in the restricted section of the applicant's OMPF.

     c.  DA Form 67-9 for the period from 13 September 2007 through 30 June 2008.  This document is filed in the performance section of the applicant's OMPF.

5.  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 (Composition of the OMPF) and Table 2-2 (Obsolete or no longer used documents) 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.  Once placed in the OMPF, the document becomes a permanent part of that file.  When discovered by the custodian or requested by the Soldier concerned, transfer documents mistakenly filed in the performance or service section to the restricted section of the OMPF.

6.  Army Regulation 600-8-104, Table 2-1, Correction of Military Records and Appeals section, in pertinent part, provides that if the DASEB approves the request and directs the transfer of the adverse action to the restricted section of the OMPF, the document directing this action will be filed in the restricted section of the OMPF, along with the adverse action.

7.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides, in pertinent part, that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command (for enlisted Soldiers, formerly designated as Headquarters, U.S. Army Enlisted Records and Evaluation Center) or the Headquarters, Department of the Army selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

9.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 of this regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the DA Form 2627, dated 25 October 2005, and DASEB memorandum, dated 28 October 2008, that are filed in the restricted section of his OMPF should be removed.

     a.  Although the applicant does not question the filing of his OERs, he provides three DA Forms 67-9 for consideration.  The evidence of record shows:

         (1)  The DA Form 67-9 for the period from 12 May 2006 through 11 May 2007 (emphasis added) is not filed in the applicant's OMPF.  However, given the two other DA Forms 67-9 (discussed below), it appears this DA Form 67-9 is not a valid OER.

         (2)  The evidence of record shows that the DA Form 67-9 for the period from 12 May 2006 through 12 September 2007 (emphasis added) is filed in the restricted section of the applicant's OMPF.

         (3)  The evidence of record shows that the DA Form 67-9 for the period from 13 September 2007 through 30 June 2008 (emphasis added) is filed in the performance section of the applicant's OMPF.

     b.  In view of the foregoing, it is concluded that the two DA Forms 67-9 filed in the applicant's OMPF are administratively correct and properly filed.

2.  The evidence of record shows the DA Form 2627 in question was originally filed in the performance section of the applicant's OMPF, along with the allied documents.  The evidence of record also shows that the DASEB directed redaction of reference to a written reprimand from the DA Form 2627; removal of the written reprimand and 97 pages of allied documents from the OMPF; and transfer of the DA Form 2627 to the restricted section of the applicant's OMPF. The evidence of record further shows that these specific actions directed by the DASEB were properly accomplished by the OMPF records custodian.

3.  The evidence of record shows the DASEB memorandum, dated 28 October 2008, is filed in the restricted section of the applicant's OMPF.  However, the DASEB Record of Proceedings and the applicant’s appeal correspondence are not filed in the restricted section of the applicant's OMPF (or any other section of the OMPF).  Notwithstanding the absence of these documents, the DASEB memorandum, dated 28 October 2008, is properly filed in the restricted section of the applicant's OMPF.

4.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust. The applicant failed to submit evidence that the documents filed in the restricted section of his OMPF are untrue or unjust.  Therefore, the DA Form 2627, dated 25 October 2005 and DASEB memorandum, dated 28 October 2008, are deemed to be properly filed and should not be removed from the applicant's OMPF.



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.




      _______ _   X_____   ___
               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)                                         AR20080017898



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ABCMR Record of Proceedings (cont)                                         AR20080017898



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