IN THE CASE OF:	  

		BOARD DATE:	    3 February 2011

		DOCKET NUMBER:  AR20100017249 


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, correction of her service personnel records to include the management information files by removing DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG)); documentation of court-martial action; and by removing management notes from the Soldier Management System (SMS) found in the Total Army Personnel Data Base (TAPDB).

2.  The applicant states she is very suspicious of those individuals who have access to her military records because they can see her entire file to include an adverse FLAG and court-martial documents.  She was investigated and tried by a court-martial resulting in a finding of not guilty.  However, she believes she is being treated unfairly by those who see these documents in her files.

3.  The applicant provides copies of two DA Forms 268; an index of the integrated-Personnel Electronic Records Management System (iPerms) showing court-martial orders filed in the Restricted Portion of her iPerms; General Court-Martial Order Number 6, [first page only] U.S. Army Combined Arms Center, Fort Leavenworth, Kansas, dated 11 September 2009; SMS and TAPDB data sheets; and email communications between the applicant and her career manager at the time.





CONSIDERATION OF EVIDENCE:

1.  The applicant was serving on active duty as an Active Guard Reserve Soldier in the rank of first lieutenant, pay grade O-2 when she submitted her application.

2.  A DA Form 268, dated 30 October 2008, shows a FLAG was initiated effective 24 October 2008.  

3.  A DA Form 268, dated 16 July 2009, removed the FLAG effective 15 July 2009.  The case was closed favorably.  The DA Forms 268 are currently filed in the applicant's MPRJ and deployment/mobilization section in iPerms.

4.  General Court-Martial Order Number 6, dated 11 September 2009, shows the applicant was charged with the following offenses.  She pled not guilty to all charges and she was found not guilty of all charges and all rights, privileges, and property were restored:

	a.  Charge I: violation of Article 81, Uniform Code of Military Justice (UCMJ) for fraudulent presentation of a claim valued at over $500.00;

	b.  Charge II: violation of Article 132, UCMJ, for presenting a false claim against the U.S. Government in the amount of over $500.00, knowing such claim to be false;

	c.  Charge III: violation of Article 107, UCMJ, for making a false official statement with the intent to deceive; and

	d.  Charge IV: violation of Article 121, UCMJ, for stealing U.S. Government funds valued at over $500.00.

5.  Data in the applicant's SMS management files located in the TAPDB show the following entries:

	a.  on 1 December 2008, at 11:09:32: FLAGS; and at 11:50:43: FLAGS;

	b.  on 18 September 2009, at 03:41:37: FLAGS; and

	c.  on 21 September 2009, at 02:55:07: FLAGS.

6.  The flag entries in the SMS are incomplete in that they do not provide the reader with any information concerning the reason or status of the flag.  


7.  The email communications provided by the applicant indicate she discussed the flagging action and court-martial action that occurred in 2008 and 2009 with her career manager.  The applicant explained she was found not guilty by the court-martial action but she was concerned that those individuals who had access to her files could still see the adverse actions.  The applicant, in effect, requested removal of these documents because she was being unfairly judged as a result of these documents.  The career manager informed the applicant that she had to submit an application to the Army Board for Correction of Military Records (ABCMR) to have the documents removed.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the following.

	a.  All personnel information recorded under the authority of this regulation is the property of the U.S. Government.  Once recorded, it will not be removed except as provided by law or this regulation.  Once placed in the OMPF, the document becomes a permanent part of that file.

	b.  The document will not be removed from a section or moved to another part of the OMPF unless directed by one or more of the following: (1) The ABCMR; (2) The Department of the Army Suitability Evaluation Board (DASEB); (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, Human Resources Command (5) The OMPF custodian when documents have been improperly filed; (6) Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, Human Resources Command, St. Louis, Missouri ; (8) Chief, Appeals Branch, National Guard Personnel Center.

	c.  Documents designated for transfer from the performance or service sections will be put in the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted section documents mistakenly filed in the performance or service section to the restricted section.  Unless approved by the Deputy Chief of Staff, Personnel or by the Human Resources Command Promotions Branch, this action does not justify standby or special selection board consideration.

	d.  The DA Form 268 will be filed in the action pending section of the Military Personnel Records Jacket (MPRJ) until a specific action is finished.  After completion of required actions, the DA Form 268 is to be removed.

	e.  Court-martial orders where all findings are not guilty will be filed in the restricted section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, all documentation pertaining to her being wrongfully investigated, flagged, and the court-martial action should be removed from her records because she is being unfairly judged as a result of these filings. 

2.  The available evidence clearly shows the applicant was flagged for investigation and court-martial action and that she was subsequently found not guilty of all charges.  Accordingly, the resulting court-martial order was filed in the restricted section of her iPerms.  There is no apparent error or injustice associated with the filing of this order.  Therefore, the applicant's request for removal of this document from the restricted section of iPerms should be denied.

3.  The available evidence clearly shows the applicant was initially flagged on 
24 October 2008.  This flag was finalized effective 15 July 2009.  Accordingly, these temporary documents should be removed from both the MPRJ and deployment/mobilization section in iPerms.

4.  The management entries in SMS, TAPDB indicate that something was done regarding flagging actions pertaining to the applicant.  However, what those actions were are not disclosed, making the entries subject to wide interpretation.  Accordingly, these entries should be deleted to preclude unfair or biased judgments against the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X____  __X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION










BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the DA Forms 268 from the MPRJ and deployment/mobilization sections of her iPerms;

	b.  deleting all entries in the SMS that refer to the applicant's flagging action; and

	c.  filing this record of proceedings in the restricted portion of her OMPF. 

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the court-martial order from the restricted section of 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)                                         AR20100017249



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ABCMR Record of Proceedings (cont)                                         AR20100017249



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