IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20110025042 


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 removal of all counseling statements, records of nonjudicial punishment (NJP), and any other non-medical related documents from her Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that she desires the documents to be removed from her OMPF because they never reflected her work ethic or character and are a reflection of her unit and harassing supervisor’s nefarious ways and unbecoming behavior.  She goes on to state that the presence of those documents in her OMPF is preventing her from obtaining a secret security clearance and is jeopardizing her government job in a failing economy.   

3.  The applicant provides no additional documents with her application. 

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 U.S. Army Reserve (USAR) in Los Angeles, California on 19 December 2003, for 8 years, under the Delayed Entry Program, in the pay grade of E-4.  On 6 January 2004, she enlisted in the Regular Army for 1 year and 32 weeks, under the provisions of the National Call to Service Program (NCSP).  She was assigned to Fort Bliss, Texas for duty as a personnel specialist. 

3.  Nonjudicial punishment was imposed against the applicant on 4 April 2005, for failure to go at the time prescribed to her appointed place of duty on 28 March 2005; for failure to go to her appointed place of duty on 29 March 2005; for disobeying a lawful order on 28 March 2005, to submit a mileage pass or not to travel outside the 250 mile radius; for failure to obey a lawful order on 25 March 2005, by driving her privately owned vehicle outside of the 250 mile travel radius; for making a false statement on 29 March 2005 by stating that she was in New Mexico when her car accident took place; and for making a false statement on 29 March 2005, by stating that she was within a 250 mile radius when her car accident took place.  Her punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction, and extra duty.
 
4.  On 15 April 2005, the applicant was notified that she was being recommended for separation from the Army under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The commander cited a company grade Article 15 that she was furnished for writing a check to Fort Bliss Auto Detail and failing to maintain sufficient funds in her bank for payment for such check; a company grade Article 15 that she was furnished for two counts of failing to go at the prescribed time to her appointed place of duty, disobeying an order from a noncommissioned officer (NCO) disobeying the battery leave pass policy by traveling outside the 250 mile radios without a pass, and making a false statement; supplemental proceedings under Article 15 for failure to go to her appointed place of duty; and numerous other counseling for misconduct that was prejudicial to good order and military discipline, as a basis for the recommendation.  The commander also indicated that her counselings included failing to report to duty numerous times; violating orders from NCOs; and disrespect toward NCOs and officers.  The commander informed the applicant that he was recommending that she receive a general discharge and that if she was recommended for a discharge under other than honorable conditions, the Commander, U.S. Army Air Defense Artillery Center and Fort Bliss, would make the final decision on her case.

5.  After consulting with counsel, the applicant acknowledged receipt of the notification on 16 April 2005 and declined to submit a statement in her own behalf.  

6.  Accordingly, on 4 May 2005, the applicant was discharged, under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, due to misconduct.  She had completed 1 year, 3 months, and 29 days of net active service.

7.  The facts and circumstances surrounding her administrative discharge with all enclosures is filed in the service section of her OMPF.

8.  On 5 December 2005, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge from under honorable conditions to fully honorable.  The ADRB also changed her separation authority to Army Regulation 635-200, paragraph 5-3, and her narrative reason for separation to secretarial authority.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) serves as the authority for the filing of documents in the OMPF.  It provides, in pertinent part, that case files for administrative separations will be filed in the service section of the OMPF along with all enclosures and allied documents.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the documents contained in the case file for her administrative separation that are of a derogatory nature should be removed from her OMPF has been noted and appears to lack merit.

2.  Notwithstanding the action of the ADRB to upgrade her discharge under Secretarial Authority, the documents are properly filed in her OMPF and she has failed to show through evidence submitted with her application and the evidence of record that the documents are in error or constitute an injustice.

3.  Additionally, properly-filed documents are not removed from official government records simply to qualify individuals for employment or advancement.

4.  The government has an interest in maintaining such records and the applicant has not shown any evidence as to why the documents in question should not remain a matter of record. 

5.  Therefore, in the absence of evidence to show that an error or injustice exists in this case, there appears to be no basis to grant 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)                                         AR20110025042





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ABCMR Record of Proceedings (cont)                                         AR20110025042



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