IN THE CASE OF:
BOARD DATE: 20 October 2010
DOCKET NUMBER: AR20100019220
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 his 4 May 2005 Summary Court-Martial (SCM) Proceedings and related documents be moved from the Performance (P) to the Restricted (R) portion of his Official Military Personnel File (OMPF).
2. The applicant states he wishes the documents in question be moved in order to allow him to remain competitive for promotion.
3. The applicant provides no documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicants record shows that on 27 April 2005, while he was serving as a sergeant first class/E-7 (SFC/E-7) at Fort Benning, Georgia, a SCM found the applicant guilty of violating the following articles of the Uniform Code of Military Justice (UCMJ) as indicated:
a. Article 92 (3 specifications), by violating a lawful general regulation by collecting money from trainees on three separate occasions on or about 20 February 2005 and 23 February 2005 and
b. Article 121 (2 specifications), by wrongfully appropriating money from two trainees on or about 1 March 2005.
2. On 2 May 2005, the SCM convening authority approved the applicants sentence of a reduction to staff sergeant/E-6 (SSG/E-6).
3. On 16 May 2005, a legal review was completed by a Judge Advocate General (JAG) attorney of the administrative and civil law division. This legal representative found the 27 April 2005 SCM on the applicant was legally sufficient. The DD Form 2329 (Records of Trail by Summary Court-Martial) and related documents referred to in the preceding two paragraphs are filed in the
P portion of the applicant's OMPF.
4. The applicant's record contains a second DD Form 2329, dated 28 September 2005, and the related legal review pertaining to a SCM on another Soldier.
5. Army Regulation 600-8-4 (Military Personnel Information Management/
Records) provides the policy for filing and maintaining documents in the OMPF. Table 2-1 outlines the composition of the OMPF. It states that DD Forms 2329 and related documents will be filed in the P portion of the OMPF. Paragraph 2-4 contains guidance on changing the OMPF. It states once in the OMPF, the document becomes a permanent part of that file and will not be removed or moved unless directed by proper authority. The ABCMR may direct a document be removed or moved if it determines an error or injustice occurred in the filling process or if warranted as a matter of equity.
DISCUSSION AND CONCLUSIONS:
1. The applicants request that the 27 April 2005 SCM proceedings and related documents on file in the P portion of his OMPF be moved to the R portion has been carefully considered. However, by regulation, once documents authorized for inclusion in the OMPF are filed, they become a permanent part of that file and can only be removed or moved if directed by proper authority.
2. The evidence of record reveals no error or injustice related to the applicants SCM convictions and/or to the filing of these documents in the P portion of the OMPF. As a result, there is an insufficient evidentiary basis to support their being removed or moved to the R portion of his OMPF.
3. The evidence of record does show a DD Form 2329, dated 28 September 2005, and related documents pertaining to a SCM of another Soldier were erroneously filed in the applicant's OMPF. Therefore, although not requested or addressed by the applicant in his application, it would be appropriate and serve the interest of justice and equity to remove these documents from his OMPF.
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 removing the DD Form 2329, dated 28 September 2005 and related documents pertaining to a Summary Court-Martial of another Soldier from his Official Military Personnel File.
2. The Board further determined that the evidence presented is 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 moving the DD Form 2329, dated 27 April 2005, and related documents pertaining to his SCM from the
P portion to the R portion of his 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) AR20100019220
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ABCMR Record of Proceedings (cont) AR20100019220
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