IN THE CASE OF:	  

		BOARD DATE:	   25 May 2010

		DOCKET NUMBER:  AR20090019512 


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 transfer of a DD Form 2329 (Record of Trial by Summary Court-Martial) from the performance (P) section to the restricted (R) section of his Official Military Personnel File (OMPF).

2.  The applicant states the incident and punishment was carried out on 9 June 1998.  Since that time, his performance has been exemplary and the intended purpose of the Uniform Code of Military Justice (UCMJ) action has been served.

3.  In support of his application, the applicant provides copies of his Enlisted Record Brief, dated 26 October 2009, and his DA Forms 2166-8 (NCO (Noncommissioned Officer) Evaluation Report) for the period ending 31 March 2009 and 1 October 2009.

CONSIDERATION OF EVIDENCE:

1.  His military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 28 October 1995.  He was discharged from the USAR DEP on 2 July 1996 and he enlisted in the Regular Army (RA) in pay grade E-1 on 3 July 1996 for 3 years.  He was advanced to pay grade E-3 on
1 April 1997.

2.  A DD Form 2329, dated 9 June 1998, shows he was found guilty by a summary court-martial of two specification of failure to repair on 9, 11, 12, 13, and 28 January 1998; three specifications of dereliction of duty on 5 and           

27 January and 26 February 1998; one specification of wrongful appropriation of another service member’s phone card on or about 30 January 1998; one specification of obtaining service under false pretenses of a value of about $1,000.00 on or about 1 February to about 30 April 1998; and one specification of being disrespectful in deportment toward an NCO on 27 April 1998.  His sentence included reduction to pay grade E-1, forfeiture of $617.00, and confinement for 30 days.  He was reduced to pay grade E-1 on 9 June 1998.

3.  The sentence was approved and ordered executed on 16 June 1998.  The DD Form 2329 was filed on the P section of his OMPF.

4.  He is currently serving on active duty and was again advanced to pay grade E-3 on 3 August 1998.  He subsequently attained pay grade E-6 on 1 February 2007.

5.  He submitted a copy of his DA Form 2166-8 for the period ending 31 March 2009 which shows he was rated as "Among the Best" with top marks from his senior rater (SR) to promote immediately, superior performance during the rating period, and assign to demanding leadership positions and watch him excel.

6.  He also submitted a copy of his DA Form 2166-8 for the period ending 1 October 2009 which shows he was rated as "Among the Best" with top marks from his SR to promote now, outstanding performance during the rated period, and demonstrated unlimited potential.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and the Army Personnel Qualification Record.  It states the P section of the OMPF is used for filing performance, commendatory, and disciplinary data.  The R section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers and release of information on this section is controlled.  A DD Form 2329 will be filed on P section of the OMPF when there is an approved finding of guilty on at least one specification.  If charges and specification are later dismissed or if all finds are later dismissed or if all findings of guilty have been reversed in a supplemental action, all related documents will be removed from the P section of the OMPF and transferred to the R 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 the OMPF or moved to another part of the OMPF unless directed by the proper authorities listed in the regulation to correct an error or remove an injustice.

8.  There are no provisions provided under Army Regulation 27-10 (Military Justice) or Army Regulation 600-37 (Unfavorable Information) for the removal or transfer of a DD Form 2329 to the R section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 9 June 1998 he was found guilty by a summary court-martial of failure to repair on four occasions, dereliction of duty on two occasions, wrongful appropriation of another service member’s phone card, obtaining service under false pretenses of a value of about $1,000.00, and being disrespectful in deportment toward an NCO.  His punishment included reduction to pay grade E-1, forfeiture of $617.00, and confinement for 30 days.  His sentence was approved and ordered executed on 16 June 1998.

2.  His contentions and documents were considered; however, there is no evidence of record and he has not provided sufficient evidence that the charges were later dismissed, all findings of guilty were reversed in a supplemental action, or that the DD Form 2329 does not reflect the true state of affairs existing at the time.  He also has not provided convincing evidence that the DD Form 2329 is untrue or unjust in whole or in part to support his request for a transfer of this document.  Absent any evidence meeting regulatory standards, there is an insufficient evidentiary basis to support transferring the DD Form 2329 to the R section of his OMPF.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear that the record is in error or unjust.

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.



      _________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)                                         AR20090019512



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ABCMR Record of Proceedings (cont)                                         AR20090019512



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