IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090014510 


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 removal of a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 30 June 2009, from his official military personnel file (OMPF).

2.  The applicant states that his former Florida Army National Guard (FLARNG) unit twice placed an unjust flag in his OMPF.  He contacted his unit to inquire about the situation, particularly after he had transferred to the U.S. Army Reserve (USAR) on 7 November 2008, and found out that the flag was initiated on 11 November 2008 and placed in his OMPF a few months later.  According to his former unit, there was no knowledge as to why the flag was posted to his records.  He was issued a new DA Form 268 in June 2009 to remove the first flag.  He adds that he always performed at 100 percent whether he was in the ARNG or the USAR and requests this Board remove the flag from his OMPF.

3.  The applicant provides a copy of Orders 317-153 issued by FLARNG on 12 November 2008 and a copy of the DA Form 268, dated 30 June 2009, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  With prior service in the Regular Army and the ARNG, the applicant's records show he enlisted in the FLARNG for a period of 6 years on 2 February 2002.  He held military occupational specialty 63B (Wheel Vehicle Mechanic) and was assigned to Headquarters Company, 2nd Battalion, 124th Infantry, Orlando, FL.

2.  The applicant's records also show he was promoted to staff sergeant on 3 October 2005 and was reassigned to Headquarters and Service Battery, 3rd Battalion, 116th Field Artillery, Plant City, FL, on or around 1 November 2006.  He also executed a 12-month extension in the FLARNG on 23 January 2008.

3.  On 7 September 2008, the applicant was counseled by his company first sergeant due to being absent from a scheduled unit training assembly (UTA) on 6 August 2008.

4.  On 10 November 2008, the applicant's immediate commander notified the applicant by certified/registered delivery mail that he was absent from five UTA's from 7 November 2008 through 9 November 2008.  The immediate commander also notified the applicant that he had accrued four unexcused absences within 1 year.  He was also provided with an opportunity to explain and/or provide justification of the unexcused absence.

5.  On 10 November 2008, the applicant's immediate commander also notified the applicant by memorandum that he was being recommended for reduction to sergeant/E-5 by reason of inefficiency (significant shortcomings in training performance) and unsatisfactory performance (a pattern of recurring 4 periods of being absent without leave (AWOL)).

6.  On 11 November 2008, a flag was initiated against the applicant for adverse action.  A copy of the DA Form 268 is not available for review with this case.

7.  On 12 November 2008, the FLARNG published Orders 317-153 directing the applicant's discharge from the ARNG and transfer to the USAR Control Group (Individual Ready Reserve (IRR)) effective 7 November 2008.

8.  On 12 November 2008, the FLARNG also published Orders 317-081 directing the applicant's discharge from the 3rd Battalion, 116th Field Artillery, and transferring him to the 3116th Forward Support Company, FLARNG, effective 12 November 2008.

9.  On 19 November 2008, the U.S. Army Human Resources Command, St. Louis, MO, published Orders C-11-820002, directing the applicant's release from the USAR Control Group (IRR) and reassigning him to a troop program unit, the 143rd Sustainment Command, Orland, FL, effective 18 November 2008.

10.  On 9 April 2009, the applicant executed an indefinite enlistment in the USAR.

11.  On 30 June 2009, a DA Form 268 was initiated by Headquarters, 3rd Battalion, 116th Field Artillery, FLARNG.  This form shows the applicant's initial flag was removed effective 11 November 2008.  This form was also posted to his OMPF on 14 July 2009. 

12.  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.  Where the OMPF is electronic, the restricted section and the performance section mean the restricted section and the performance section of Personnel Electronic Management System.

13.  Paragraph 7-2 of Army Regulation 600-37 contains guidance on appeals for removal of OMPF entries.  It states, in pertinent part, the burden of proof to support removal of a document filed in the OMPF 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.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies and mandated operating tasks for the Military Personnel Information Management/Records Program of the Military Personnel System.  Chapter 2 of this regulation provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Paragraph 2-4 contains guidance on changing the OMPF.  There is no provision to file the DA Form 268, as a stand-alone document in the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the OMPF is to protect the interests of both the 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.

2.  The evidence of record shows that the applicant was absent from UTA's from 7 November 2008 to 9 November 2008.  It appears that his immediate commander initiated a flag against him at the time.  This occurred at the same time he was discharged from the ARNG and transferred to the USAR.

3.  It also appears that his former ARNG unit determined at a later date that the reason for his AWOL at the time was his simultaneous transfer to the USAR.  Accordingly, his former ARNG commander initiated a DA Form 268 on 30 June 2009 to remove the initial flag.  However, for unknown reasons, this DA Form 268 was erroneously filed in his official record.  There is no provision to file the DA Form 268 on the OMPF.  Therefore, the applicant is entitled to correction of his records to remove this form.

BOARD VOTE:

____X___  ___X____  ____X___  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 268, dated 11 November 2008, from the applicant's OMPF.



      ____________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)                                         AR20090014510



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ABCMR Record of Proceedings (cont)                                         AR20090014510



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