IN THE CASE OF:
BOARD DATE: 16 February 2011
DOCKET NUMBER: AR20100023262
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 that a summary court-martial (SCM) be transferred to the restricted portion of his official military personnel file (OMPF).
2. The applicant states:
a. evidence of an SCM that occurred on 3 October 2005 was recently posted in his OMPF on 18 August 2010, nearly 5 years later;
b. a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) filed in his OMPF with a through date of 30 November 2005 makes reference to the SCM, resulting in two derogatory documents in his OMPF for the same offense;
c. the intended purpose of the SCM has been served;
d. transfer of the SCM to the restricted portion of his OMPF would be in the best interest of the Army; and
e. his record, both before and after the SCM conviction, reflects the qualities and potential he possesses as an NCO to better serve the Army in positions of greater responsibility.
3. The applicant provides the following documents:
* Army Commendation Medal (ARCOM) Certificate
* DA Form 1059 (Service School Academic Evaluation Report (AER))
* eight NCOER's
CONSIDERATION OF EVIDENCE:
1. At the time of his application, he was serving on active duty as a Regular Army (RA) Soldier in the rank of sergeant first class/E-7. He currently serves in military occupational specialty 19K (M-1 Armor Crewman).
2. A DD Form 2329 (Record of Trial by Summary Court-Martial) completed on 31 October 2005 shows an SCM found the applicant guilty of violating Article 92 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order or regulation. He was found not guilty of violating Article 86 (failing to go to his appointed place of duty) and Article 90 (disobeying a lawful order given by his superior commissioned officer) of the UCMJ.
3. A DA Form 2166-8, which rated the applicant as a battalion master gunner during the period April 2005 through November 2005, includes the entry "violated Article 92" under the rater comments in part IV (Army Values/Attributes/Skills/
Actions).
4. The aforementioned DD Form 2329 and DA Form 2166-8 are currently filed in the applicant's OMPF.
5. 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) ABCMR; (2) Department of the Army Suitability Evaluation Board (DASEB); (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, U.S. Army Human Resources Command (5) OMPF custodian when documents have been improperly filed; (6) Commander, U.S. Army Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, U.S. Army Human Resources Command, St. Louis, Missouri; or (8) Chief, Appeals Branch, Army National Guard Personnel Center.
c. Chapter 2 contains guidance on the OMPF. Table 2-1 outlines the composition of the OMPF and states in regard to the DD Form 2329:
(1) file in the performance portion of the OMPF when there is an approved finding of guilty on at least one specification with all supplemental actions;
(2) if all approved findings are not guilty, file in the restricted portion of the OMPF with all supplemental actions; and
(3) if all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental action, remove all related documents and transfer them from the performance to the restricted portion of the OMPF.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that all documentation pertaining to his SCM conviction has served its intended purpose and should be transferred to the restricted portion of his OMPF.
2. By regulation, the DD Form 2329 with all supplemental actions will be filed in the performance portion of the OMPF when there is an approved finding of guilty on at least one specification. Once placed in the OMPF, the document becomes a permanent part of that file.
3. The evidence of record clearly shows an SCM found the applicant guilty of violating Article 92 of the UCMJ. Accordingly, the DD Form 2329 and supplemental actions were filed in the performance section of his OMPF. There is no apparent error or injustice associated with the filing of this DD Form 2329 or the NCOER in question which mentioned this violation. Therefore, the applicant's request to move this document to the restricted section of his OMPF should be denied.
BOARD VOTE:
________ ________ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
___________XXX______________
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) AR20100023262
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