IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100028825 


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, removal of an Office of Personnel Management (OPM) Report of Investigation from her records.

2.  She states, in effect, that she believes the OPM Report of Investigation involving the incident that occurred in August 2000 should be removed from her records because the incident occurred 3 years prior to her discharge date.  She believes she is being punished twice for the same incident.  She also believes the person who placed the report in her record was trying to ruin her life.  No one wants to hire her with this information in her background check.

3.  She also states, in effect, that she was not discharged for many of the reasons listed.  There are false counseling statements in her records that she has never heard of or signed.  Fabricated information was put into her record and it is causing her to be disqualified for many jobs.  She did not have time to dispute her discharge because her unit sent her away within 24 hours.  The information in her record defames her character, distorts who she is now, and interferes with her ability to support her children.  Her rights were violated when she was denied the opportunity to dispute her discharge and the false information.  She states that she has a letter from the trial defense counsel supporting her complaint.  

4.  She provides an OPM Report of Investigation and an undated letter from the trial defense counsel that was a part of her separation packet.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 19 November 1999 for 3 years. She completed training and was awarded military occupational specialty 71L (Administrative Specialist).  

3.  On 13 July 2000, the Landstuhl Regional Medical Center (LRMC) Case Review Committee (CRC) Chairperson advised the applicant's command of two reports of alleged spouse abuse involving the applicant and her spouse.  Both spouses were named as victim and offender.  The CRC substantiated the report indicating the applicant was the victim and the spouse's report was unsubstantiated.

4.  On 11 August 2000, while serving in pay grade E-2, the applicant was issued a Letter of Reprimand (LOR) for having an inappropriate relationship with a noncommissioned officer (NCO).  She was advised that the inappropriate relationship and improper conduct contributed to the demise of her marriage.  She was also advised that she was involved in a verbal and physical altercation with her spouse on 4 July 2000.  It was determined that she was the victim of a substantiated simple assault by her spouse.  The company commander directed the early return of their three children to her spouse's custody.  

5.  A Memorandum for Record (MFR), Subject:  Commander Follow-Up Counseling, dated 14 August 2000, summarized and documented a number of issues associated with the applicant's counseling due to marital discord and the separation of the applicant from her husband.  The applicant authenticated this MFR with her signature acknowledging that she had been counseled and understood the significance of the MFR.

6.  A Case Referral memorandum, dated 11 September 2000, shows the applicant's sister in-law submitted a request to the applicant's commander concerning the applicant's lack of support for her family.  

7.  She received counseling for the following:

* 27 January 2003 - failing to sign in from leave and to report to an alert, applicant disagreed
* 10 February 2003 - failing to pay rent and utilities for December, January, and February, applicant agreed and stated she was going to pay
* 13 February 2003 - insubordinate conduct towards an NCO and failing to obey an order, applicant refused to sign
* 14 February 2003 - insubordinate conduct towards an NCO, applicant disagreed and submitted a statement
* 18 February 2003 - suspension of driving privileges, applicant disagreed
* 20 February 2003 - insubordinate conduct towards an NCO and failing to obey an order, applicant disagreed and was moved to another section
* 25 February 2003 - destruction of private property, applicant disagreed and submitted a statement
* 7 March 2003 - rehabilitative assignment to another section, applicant agreed
* 7 March 2003 - Cost of Living Adjustment (COLA) fraud, applicant agreed and submitted a statement
* 26 March 2003 - possible chapter under Army Regulation 635-200 (Enlisted Separations), paragraph 14-12b, the applicant disagreed and submitted a statement
* 2 June 2003 - fourth traffic violation, the applicant disagreed
* 16 June 2003 - traffic violation, the applicant agreed

8.  She underwent a mental status evaluation on 13 May 2003.  Her behavior was found to be normal.  She was found to be fully alert and fully oriented.  Her mood or affect was unremarkable, her thinking process was clear, and her thought content was normal.  The evaluating psychiatrist found she was mentally responsible, met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  She was also found to be mentally responsible and able to distinguish right from wrong and to adhere to the right.

9.  On an unspecified date, the applicant's company commander notified the applicant that he was initiating action to discharge her under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for the applicant's constant violation of various articles of the Uniform Code of Military (UCMJ) and military regulations over an extended period of time.  The company commander recommended the issuance of a general discharge.
10.  In July 2003, she acknowledged receipt of the contemplated separation action under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12a, for minor disciplinary infractions.  After consulting with counsel, the applicant waived her rights and elected to submit a statement in her own behalf.  She also acknowledged that she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.  She further acknowledged she understood that as a result of the issuance of a discharge under other than honorable conditions she might be ineligible for many or all benefits as a veteran under both Federal and State laws.  

11.  In her statement, the applicant indicated that she strongly refuted and rebutted the information concerning the patterns of minor disciplinary infractions and did not believe there were sufficient grounds to warrant/support separation.  She indicated that she had not received any type of performance counseling and/or guidance until such time as she received the counseling statements within the chapter 14 packet.  The packet contained backdated counseling's, unsigned counseling's, and/or forged counseling's, but the trial counsel found the packet legally sufficient for a chapter 14-12a.  

12.  The applicant also stated that her legal advisor disagreed with the findings and/or processing as it related to or led up to the pending personnel action.  Like any Soldier, she is in need of strong NCO leadership and mentorship as outlined in the 10 objectives and functions of an NCO.  From April 2000 to April 2003, she feels that she was deprived of that strong NCO leadership and mentorship.  She requested the command consider granting her a fair opportunity to further her military career within another unit and/or command outside that installation and/or headquarters.

13.  The applicant's company and battalion commanders recommended that she be separated under the provisions of Army Regulation 635-200, chapter 14, prior to her expiration term of service date with a general discharge.  

14.  On 2 July 2003, her separation action under the provisions of Army Regulation 635-200, paragraph 14-12a, was found legally sufficient.

15.  On an unspecified date, the appropriate separation authority approved the discharge action and specified the issuance of a General Discharge Certificate.  

16.  Accordingly, she was discharged from active duty in pay grade E-4 on 13 August 2003, under the provisions of Army Regulation 635-200, paragraph 14-12a, for Misconduct.  She was credited with completing 3 years, 8 months, and 25 days of active service.  Her character of service was under honorable conditions and she was issued a General Discharge Certificate.
17.  A review of her military personnel records jacket (MPRJ) located on the integrated Personnel Electronic Records Management System (iPERMS) failed to reveal a copy of the OPM Report of Investigation.  

18.  However, her records on iPERMS do contain a statement titled "Data Required by the Privacy Act of 1974" which states, in effect, personal information that is filed in the MPRJ may be used by the appropriate Federal, State, and local government authorities where the use of the information is compatible with the purpose for which the information is collected.  

19.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

20.  She submitted a copy of a Report of Investigation, the property of OPM, transmitted on 30 November 2009.  The report stated it was obtained from the Defense Personnel Records Image Retrieval System (DPRIS).  The report stated she was discharged under honorable conditions for misconduct in August 2003.  The report also stated the following:

* 7/00 - subject was investigated due to receiving two allegations of spousal abuse
* 9/00 - subject also investigated for allegations made by the subject's sister-in-law for improperly providing support to family members, obeying Army regulations, and engaging in an adulterous affair with an NCO
* 8/00 - subject received LOR after a homemade sex tape of the subject and NCO was turned in by the subject's spouse, subject was counseled for an inappropriate relationship with an NCO
* 6/03 - subject was counseled twice for receiving tickets for speeding
* 3/03 - subject was informed she would be administratively separated due to repeated minor infractions and misconduct
* 3/03 - counseled on COLA fraud, claimed four dependents, but only had three
* 2/03 - counseled on destruction of government property
* 2/03 - counseled for insubordination twice and for failing to obey an order
* 2/03 - drivers privileges suspended

21.  She also provided a copy of a letter from a trial defense counsel that was a part of her separation action.  Counsel stated she met with the applicant, reviewed her chapter 14 packet, and she did not believe there was a sufficient basis to support the separation action.  The applicant's packet contained no evidence that any less radical measures had been taken.  Despite all of the allegations of "minor disciplinary infractions" the company commander did not think that one of them or all of them were sufficient to merit nonjudicial punishment.  Chapter 14s are usually taken after there has been sufficient counseling and the command had attempted to resolve the situation under the Uniform Code of Military Justice.  

22.  This letter shows counsel also stated that the applicant had numerous positive counseling statements in the past and that she would like to remain in the Army.  However, it was obvious she could not succeed in her current unit.  The applicant requested consideration as an alternative a rehabilitative transfer to a different unit where she would have the opportunity to succeed based on her own merits.

23.  Army Regulation 635-200, chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

24.  Army Regulation 600-37 (Unfavorable Information) prescribes the policy for authorized placement of unfavorable information about Army members in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

25.  Army Regulation 600-37 also specifies a letter of reprimand, regardless of issuing authority, may be filed in the OMPF only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Letters (memorandums) of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The Department of Army Suitability Evaluation Board has been established as the appeal and petition authority for unfavorable information entered in the OMPF under this regulation.

26.  Army Regulation 600-37, paragraph 7-2, further specifies 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.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole, or in part, thereby warranting its alteration or removal from the OMPF.

27.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and the Army personnel qualification record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

28.  The DPRIS Website states that DPRIS provides a conduit for the secure electronic retrieval of document images and computable data from the Services' Official Military Personnel File repositories and narrative data from the Joint Services Records Research Center, in response to requests initiated by veterans and authorized and approved government agency users.  It is a Department of Defense Computer System only for authorized U.S. Government use.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends an OPM Report of Investigation should be removed from her records.  

2.  The available evidence shows in July 2003 the LRMC CRC notified the applicant's chain of command of two reports of alleged spouse abuse involving the applicant and her spouse and that the applicant's report indicating she was the victim had been substantiated; her spouses report was unsubstantiated.

3.  On 11 August 2000, the applicant was issued an LOR for having an inappropriate relationship with an NCO.  She also received an MFR documenting counseling associated with marital discord and the separation of her and her spouse.  Additionally, she received extensive counseling for a number of infractions between January and June 2003.  The available evidence shows she acknowledged all counseling, indicated that she agreed or disagreed, and in some instances submitted statements in her own behalf.   


4.  The applicant's commander notified her of his intent to separate her from the Army and that she could receive a general discharge.  She acknowledged the commander's notification and waived her opportunity to appear before an administrative board to prove her contentions if she felt she was being wrongfully discharged or that she was being treated unfairly.  The letter the applicant provided from the trial defense counsel concerns issues that were raised as part of her separation processing and the issues should have been resolved at that time if they were valid issues.  They are not sufficient to support her request. 

5.  The available evidence also shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  She has submitted neither probative evidence nor a convincing argument in support of her request and her record contains no evidence which indicates her rights were violated or that information was fabricated.

6.  Based on the available evidence, the OPM Report of Investigation appears to be the summarized details of the applicant's period of active service.  A review of her records located on iPERMS failed to reveal a copy of the OPM Report.  Her MPRJ that is located in iPERMS contains a Privacy Act Statement which authorizes Federal, State, and local government authorities the use of information contained in the MPRJ.  

7.  Therefore, there is no basis for granting her request.

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)                                         AR20100028825



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ABCMR Record of Proceedings (cont)                                         AR20100028825



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