IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110023643 


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 the transfer of his separation packet and DD Form 
214 (Certificate of Release or Discharge from Active Duty), effective 4 December 1998, to the restricted portion of his official military personnel file (OMPF).

2.  The applicant acknowledges that the forms in question are accurate, but states that it has been almost 13 years since the incident occurred and disagrees that they should still be visible on his OMPF.

3.  The applicant provides:

* Memorandum to the ABCMR, dated 25 October 2011
* Separation Packet with allied documents
* DD Form 214, effective 4 December 1998
* Orders Number A321-03, dated 17 November 1998
* Enlisted Record Brief (ERB),dated 31 July 2011
* Character Reference, dated 13 August 2011
* 8 - DA Form 2166-8 (Noncommissioned Officer Evaluation Report) covering the 1 August 2004 through 30June 2011
* Extract from Army Regulation 635-200 (Personnel Separations -Enlisted Personnel), chapter 14, Separation for Misconduct
* 2 - Memorandum for Record/Letters of Support, dated 7 September 2011 and 20 October 2011



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 13 September 1995.  He was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 21 October 1998, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of paragraph, 14-12c, Army Regulation 635-200, for commission of a serious offense, due to his commission of an offense of carnal knowledge.

4.  On an unknown date, the separation authority approved the discharge action, directed that he not be transferred to the Individual Ready Reserves, and that he be issued a general discharge.

5.  On 4 December 1998, he was discharged under the provisions of paragraph 14-12c, Army Regulation 635-200, due to misconduct, with a general discharge.  The DD Form 214 he was issued at the time confirms he held the rank/grade of specialist (SPC)/E-4 and he had completed a total of 3 year, 
2 months, and 22 days of active military service.  He subsequently reenlisted on 11 July 2008.

6.  The applicant submits:

   a.  A self authored letter in which he contends the documents relating to his discharge have served their intended purpose.  He contends that he violated a no contact order when he gave his then 16 year old girlfriend a ride.  The Army found this to be a serious offense and he was discharged accordingly.  He reenlisted in the Army on 11 July 2008 and has been an exceptional Soldier.  He has been deployed to Afghanistan on two occasions, received many awards, and completing various military education courses.  On the civilian side, he later married his girlfriend and has been an excellent husband, father, and son-in-law.  Finally, he regrets his mistake and has learned his lessons.
   
   b.  Evaluation reports for the period 1 August 2004 through 30June 2011 which show he was continuously rated at "Among the Best" by his rater.  Further; his overall performance was rated as successful and his overall potential was rated as superior by his senior raters.
   
   c.  Letters of support which attest to integrity, outstanding character, duty performance, and proven dedication to the Army.  One letter is from the applicant's father-in-law, a retired United States Air Force, master sergeant, who adds that he believes the applicant has the traits to be a great leader.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement. or discharge.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), chapter 2 governs the composition of the OMPF and states the performance section is used for filing performance commendatory and disciplinary data.  Once placed in the OMPF the document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the section unless directed by certain agencies, to include this Board.  Table 2-1 of Army Regulation 600-8-104 states that the case files for approved separations and the DD Form 214 will be filed in the permanent section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the transfer of his separation packet and his DD Form
214, effective 4 December 1998, to the restricted portion of his OMPF.

2.  In his application, he acknowledges his separation documents are accurate but contends that they have served their intended purpose.  However, for historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  While it is understandable he desires to have the derogatory information transferred to his restricted portion of his OMPF, these documents are properly filed in his OMPF in accordance with the applicable regulation.

3.  His exceptional service during this current period is not in question, but in the absence of material error or injustice, there is no basis to recommend that his records be changed. 

4.  In view of the above, his request should be denied

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)                                         AR20110023643





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ABCMR Record of Proceedings (cont)                                         AR20110023643



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