IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100006927 


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, that the DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 19 November 2004; amended separation orders D-49-490221A01, dated 15 September 2004; amended orders C-08-491293A01, dated 15 September 2004; attachment orders C-08-491293, dated 30 August 2004; separation orders D-49-490221A01, dated 15 September 2004; and the case file for approved separation be transferred from the performance section of his Official Military Personnel File (OMPF) to the restricted section.  

2.  The applicant states, in effect, that he believes this information to be derogatory and that it had served its intended purpose.  In November 2004 he received an administrative discharge which stated he would not be eligible for reentry into the military for 2 years.  He contends that the administrative separation documents became an injustice when he reentered the Army, nearly 
3 and 1/2 years later on 30 April 2008.

3.  The applicant provides a copy of his most recent DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he had prior enlisted service in the U.S. Marine Corps, the U. S. Marine Corps Reserve, the Regular Army, the U.S. Army 


Reserve (USAR), and again in the Regular Army, the applicant again enlisted in the USAR on 15 November 2001 and entered active duty in an Active Guard Reserve (AGR) status on 25 November 2001.

2.  On 8 September 2003, a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was initiated for adverse action.  The separation authority made a determination on 14 May 2004 that there were sufficient facts supported by a preponderance of the evidence that the applicant did commit misconduct by sexually harassing a specialist and for physically assaulting a sergeant.  

3.  The separation authority directed the applicant be separated in accordance with Army Regulation 635-200 (Active Duty Enlisted Separations), chapter 14 for misconduct.  On 11 May 2004, the applicant waived his right to have his case referred to an Administrative Separation Board via a memorandum.  

4.  The applicant's DD Form 214 shows he was discharged on 19 November 2004 in accordance with chapter 14-12c of Army Regulation 635-200.  He was discharged with a characterization of service of General under Honorable Conditions and was given a reentry code (RE) of "3."  A copy of his case file for separation was placed in the service (S) fiche of his OMPF.

5.  On 30 April 2008, the applicant enlisted in the Regular Army for a period of
3 years and 13 weeks in the rank/pay grade of staff sergeant/E-6 and is still serving on active duty.

6.  The applicant's NCOER for the period ending 29 April 2009 shows he was rated as "Excellence" in 4 of 5 categories and as "Success" in the fifth category.  His rater rated his potential as "Among the Best," and his senior rater gave his performance and potential the highest possible ratings.

7.  The applicant applied to the Department of the Army Suitability Evaluation Board (DASEB).  On 24 July 2009, the DASEB returned the applicant’s request without action due to lack of jurisdiction and recommended he appeal to the ABCMR for transfer of his separation documents. 

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 the same regulation provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 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.  However, the document may be transferred upon proof that its intended purpose has been served or that its transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation states that only those documents listed in Table 2-1 and Table
2-2 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.

11.  Chapter 2 of the same regulation states, in pertinent part, that case files for approved separations will be filed in the service fiche of the OMPF.  Documents filed on the service fiche are those that must be permanently kept to:

* Record a Soldier's military service
* Manage a Soldier's career
* Protect the interest of both the Soldier and the Army

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 dated 19 November 2004, amended separation orders dated 15 September 2004, amended orders dated 15 September 2004, attachment orders dated 30 August 2004, separation orders dated 15 September 2004, and case file for separation under Army Regulation 635-200 should be transferred to his restricted section of his OMPF because he believes they have served their purpose.  His contentions were noted but are not currently supported by the evidence provided.

2.  The applicant was discharged on 19 November 2004 for misconduct with over 11 years of active service in the rank of staff sergeant, which is documented in his official record and is properly filed.  He was given an RE code of "3" at the time of his discharge.  He subsequently enlisted on 30 April 2008, with a waiver.

3.  Careful consideration has been given to the applicant’s service since his April 2008 enlistment.  The Army has a vested interest in maintaining the integrity of its records.  The applicant's DD Form 214, orders, and case file for separation are kept to maintain an unbroken, historical record of his service, conduct, etc.  They are necessarily maintained to protect the interests of the Army.  

4.  More importantly for the issue at hand, less than 2 years have passed since the applicant's enlistment.  While he received a very highly-commendatory NCOER in April 2009, more time and more NCOERs or other relevant evidence (e.g., awards and decorations) are needed to determine if the documents in question have indeed "served their intended purpose."  

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)                                         AR20100006927



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)