IN THE CASE OF:	  

		BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20100014677 


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, the removal of any derogatory documents pertaining to his enlisted service from his official military personnel file (OMPF) or their transfer from the performance section to the restricted section of his OMPF.

2.  The applicant states the content of the record is not in error; however, the incidents transpired over 30 years ago when he was serving as an enlisted member.

3.  The applicant did not provide any additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 20 October 1975 and held military occupational specialty 75B (Personnel Administration Specialist).

2.  On 20 May 1977, while assigned to the 508th Transportation Company, Fort Eustis, VA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disrespecting a commissioned officer and communicating a threat.  His punishment consisted of a suspended reduction and a suspended forfeiture of pay.  However, on 27 July 1977, his suspended reduction and suspended forfeiture of pay was vacated and ordered executed.

3.  On 25 August 1977, he pled guilty at a special court-martial to one specification of disrespecting a commissioned officer.  The court sentenced him to a reduction to private/E-1, a forfeiture of $249.00 pay per month for 4 months, and confinement at hard labor for 4 months.

4.  On 20 October 1977, the convening authority approved his court-martial sentence but suspended the portion of the sentence that provides for confinement at hard labor in excess of 60 days for 6 months.  Furthermore, on 2 November 1977, the unexecuted portion of the sentence of forfeiture was suspended and later ordered remitted.

5.  On 13 March 1978, while assigned to the 2nd Battalion, 19th Field Artillery, Fort Hood, TX, he accepted NJP under the provisions of Article 15 of the UCMJ for assaulting a sergeant by striking him with his fist.  His punishment consisted of a forfeiture of pay and extra duty.

6.  On 2 April 1979, while assigned to the 15th Medical Battalion, Fort Hood, TX, he accepted NJP under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order.  His punishment consisted of a suspended forfeiture of pay.

7.  On 19 May 1979, while assigned to the 15th Medical Battalion, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying an order.  His punishment consisted of a suspended forfeiture of pay.

8.  He was honorably released from active duty on 8 December 1979 by reason of completion of his required service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years of creditable active service.

9.  Subsequent to his release from active duty, he served with the Virginia Army National Guard (ARNG).  He was honorably discharged from the ARNG on 11 July 1986 as an enlisted member to accept an appointment as a commissioned officer.

10.  On 12 July 1986, he was appointed as a second lieutenant in the Virginia ARNG and executed the oaths of office on the same date.  He subsequently completed several training courses, served in various staff and leadership positions, and attained the rank of lieutenant colonel.  He is currently on active duty from the U.S. Army Reserve (Reinforcement).

11.  The subject court-martial order and the five Articles 15, together with a previously issued enlisted evaluation report, are filed in the restricted portion of his OMPF.

12.  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 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.  Documents will not be removed from a fiche or moved to another part of the file unless directed by an appropriate authority.

13.  Army Regulation 600-8-104 states 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 the information in the restricted section is controlled and not routinely released to promotion selection boards.  This Army regulation also states that documents authorized for filing in the restricted section are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and corrections to other parts of the OMPF.  It also serves to protect the interests of the Soldier and the Army.

14.  Paragraph 2-7 states, once started, the OMPF will be continued in use.  It will be continued even if the Soldier changes grade or components, enlists/reenlists within 24 hours after discharge, or changes status within an Army component (such as, Active Army enlisted to Active Army commissioned officer).  When enlisted Soldiers are appointed as commissioned officers, their enlisted OMPF will be collocated with their new officer OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. 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.  It is acknowledged the applicant has rebounded from his multiple infractions as an enlisted Soldier in an outstanding manner as evidenced by his appointment as a commissioned officer and subsequent honorable service, promotions, and/or excellent overall record.  Nevertheless, the Army has an interest in maintaining the accuracy of its records.  The information in those records must reflect the conditions/circumstances that existed at the time the records were created.

3.  The documents are not filed on the performance section of his OMPF.  As required by the applicable regulation, the Article 15s and court-martial order are properly filed in the restricted section of the applicant's OMPF.  Additionally, there is no evidence that this derogatory information has affected his selection for promotion over the years.  There does not appear to be an error or an injustice.

4.  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 did not submit evidence that would satisfy that requirement.  Therefore, there is insufficient evidence to grant him the requested relief.

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)                                         AR20100014677



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ABCMR Record of Proceedings (cont)                                         AR20100014677



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