IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110012852 


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 removal of the Army Good Conduct Medal (AGCM) disqualification memorandum from his Official Military Personnel File (OMPF) or transfer of the memorandum from the performance section to the restricted section of his OMPF.

2.  The applicant states he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 April 2007.  He states it was his first and only disciplinary action of any type during his military career and he describes how humbling and humiliating the experience was for him.

   a.  The applicant's brigade commander directed the Article 15 be filed in the performance section of his OMPF.  As a result of the Article 15, his company commander issued a memorandum disqualifying him for award of the AGCM, which was also filed in the performance section of his OMPF.

   b.  The applicant's chain of command encouraged him to respond to the experience in a positive and professional manner.

   c.  After the period of punishment, the applicant responded by earning a perfect score from the staff sergeant (SSG) promotion board.  He was promoted to SSG, served as a platoon sergeant, and graduated from the Senior Leadership Course on the Commandant's List and received the "Iron Soldier Award."
   d.  On 7 April 2009, he petitioned the Department of the Army Suitability Evaluation Board (DASEB) to transfer the Article 15 and AGCM disqualification memorandum from the performance section to the restricted section of his OMPF.  The DASEB denied his request.

   e.  He was considered for promotion [secondary zone] to sergeant first class (SFC)/pay grade E-7 in February 2010, but was a non-select for promotion.  He believes the two documents were the basis for his non-selection for promotion.

   f.  The applicant again petitioned the DASEB to transfer the Article 15 and AGCM disqualification memorandum from the performance section to the restricted section of his OMPF.  On 10 November 2010, the DASEB approved his request to transfer the Article 15 to the restricted section of his OMPF; however, he was advised to apply to the Army Board for Correction of Military Records (ABCMR) regarding transfer of the AGCM disqualification memorandum.

3.  The applicant provides a copy of the 2010 DASEB Record of Proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the Regular Army as a SSG with a date of rank of 1 February 2008 in military occupational specialty
92A (Supply Noncommissioned Officer [NCO]).

2.  Headquarters, 160th Special Operations Aviation Regiment (Airborne), Fort Campbell, KY, Permanent Orders 46-7, dated 15 February 2005, awarded the applicant the AGCM (2nd Award) for the period of service from 20 August 2001 through 19 August 2004.

3.  On 14 May 2007, NJP was imposed against the applicant by his brigade commander for violation of Article 107 of the UCMJ by submitting a false college transcript with intent to deceive.  The applicant's punishment consisted of reduction to specialist/pay grade E-4 (suspended until 14 November 2007), forfeiture of $1,227.00 for two months (suspended until 14 November 2007), and 45 days of extra duty.  The applicant did not appeal the NJP.  The brigade commander directed the Article 15 be filed in the performance section of the applicant's OMPF.  [The Article 15 is filed in the restricted section of the applicant's OMPF.]

4.  Headquarters, 160th Special Operations Aviation Regiment (Airborne), U.S. Army Special Operations Command, Fort Campbell, KY, memorandum, dated
3 December 2007, subject:  Disqualification of Good Conduct Medal Award, shows the applicant's company commander disqualified him for the AGCM for the period 20 August 2004 through 19 August 2007 based on an Article 15 issued during the period.  The applicant acknowledged and concurred with the disqualification.  The memorandum is filed in the performance section of the applicant's OMPF.

5.  The applicant was promoted to SSG (E-6) on 1 February 2008.

6.  On 11 June 2009, the DASEB determined there was insufficient evidence to justify removal of the Article 15, dated 14 May 2007, and AGCM disqualification memorandum, dated 3 December 2007, from the applicant's OMPF or to transfer them from the performance section to the restricted section of his OMPF.

7.  The applicant's military personnel records show:

   a.  he successfully completed the:

       (1)  Standard Army Maintenance Systems Course on 30 September 2009;

       (2)  Automated Logistical Specialist Senior Leadership Course on 16 July 2010 and attained Commandant's List recognition; and

       (3)  Material Manager Course on 10 November 2010;

   b.  a total of six (6) DA Forms 2166-8 (NCO Evaluation Reports), covering the period from 1 July 2007 through 22 October 2010, that show all of the applicant's raters assessed his overall potential for promotion and/or service in positions of greater responsibility as "Among the Best" and all of his senior raters assessed his overall performance as "Successful - 1" and overall potential as "Superior - 1;" and

	c.  he was awarded the Army Commendation Medal for meritorious service as the 7th Sustainment Brigade Schools and Training NCO, Joint Base Langley-Eustis, VA, during the period 10 May 2008 to 10 November 2010.

8.  Headquarters and Headquarters Company, 7th Sustainment Brigade, Fort Eustis, VA, Permanent Orders Number 245-005, dated 12 July 2010, awarded the applicant the AGCM (3rd Award) for the period 20 August 2007 to 19 August 2010.

9.  On 10 November 2010, based on new evidence that the applicant submitted, the DASEB amended its original decision and approved his request to transfer the Article 15 from the performance section to the restricted section of his OMPF.

   a.  The DASEB also directed that:

       (1)  the DASEB Decision Memorandum, dated 17 June 2009, and all allied documents be transferred to the restricted section of his OMPF; and

       (2)  the DASEB Record of Proceedings, dated 10 November 2010, and all allied documents be filed in the restricted section of his OMPF.

   b.  The presiding officer noted that "[t]his action is not to be considered retroactive and, therefore, does not constitute grounds for promotion reconsideration, if previously non-selected."

   c.  The applicant was advised to apply to the ABCMR regarding transfer of the AGCM disqualification memorandum.

10.  The U.S. Army Human Resources Command (USA HRC) website at:  www.hrc.army.mil shows the consolidated selection boards schedule for Fiscal Year 2011 (FY11).  Based on the applicant's date of rank for SSG, he was in the primary zone [first time] for consideration for promotion to SFC by the FY11 SFC Active Component (AC) Promotion Selection Board that convened on 3 February 2011.  The results of the Board were released on 24 March 2011.  The applicant was not selected for promotion by the FY11 SFC AC Promotion Selection Board.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  

   a.  Only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.

	b.  Paragraph 2-3 (Composition of the OMPF) provides that 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 information in this section is controlled.  It may not be released without written approval from the Commander, USA HRC, or the Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

12.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

   a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.

	b.  Paragraph 7-2 (Policies and Standards) provides 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the AGCM disqualification memorandum filed in the performance section of his OMPF should be removed from his OMPF or at least transferred from the performance section to the restricted section of his OMPF because the DASEB determined that the Article 15 that the memorandum was based on had served its intended purpose and the Article 15 has since been transferred to the restricted section of his OMPF.

2.  The evidence of record shows the AGCM disqualification memorandum is properly filed in the performance section of the applicant's OMPF.

3.  The AGCM disqualification memorandum serves the purpose of alerting human resources managers of the prohibition for award of the AGCM for a specified period of time.  The memorandum under review specifically disqualified the applicant for the third award of the AGCM for the period 20 August 2004 through 19 August 2007 based on an Article 15 issued during that period.

4.  Records show that on 10 November 2010, the DASEB directed the Article 15, dated 14 May 2007, be transferred from the performance section to the restricted section of the applicant's OMPF because the intended purpose of the NJP has been served.

5.  Permanent orders awarded the applicant the AGCM (3rd Award) for the period 20 August 2007 to 19 August 2010.

6.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  No such evidence has been provided in this case in that regard.  Therefore, the document in question should not be removed from the applicant's OMPF.

7.  However, the applicant's request for transfer of the AGCM disqualification memorandum filed in the performance section of his OMPF has been carefully considered and is found to have merit.

   a. The Article 15 upon which the disqualification memorandum was based has been transferred from the performance section to the restricted section of the applicant's OMPF because the intended purpose of the Article 15 has been served.

   b.  The applicant was denied award of the AGCM (3rd Award) for the period
20 August 2004 through 19 August 2007.

   c.  He was awarded the AGCM (3rd Award) for the period 20 August 2007 through 19 August 2010.

8.  In view of the facts of this case, it would be appropriate to correct the applicant's record to show the AGCM disqualification memorandum, dated
3 December 2007, was transferred to the restricted section of his OMPF.  It would also be appropriate to file the ABCMR decision memorandum related to this action, along with the Record of Proceedings and all allied documents, in the restricted section of the applicant's OMPF.

9.  This decision of the ABCMR is not to be considered retroactive and, therefore, does not constitute grounds for promotion reconsideration by the FY11 SFC AC Promotion Selection Board.

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 showing the AGCM disqualification memorandum, dated 3 December 2007, was transferred to the restricted section of his OMPF.

2.  The Board further determined 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 removal of the AGCM disqualification memorandum, dated 3 December 2007, from his OMPF.

3.  This Record of Proceedings and all associated documents will be filed in the restricted section of the individual'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)                                         AR20110012852



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ABCMR Record of Proceedings (cont)                                         AR20110012852



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