IN THE CASE OF:
BOARD DATE: 19 April 2012
DOCKET NUMBER: AR20120004654
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 Case Files for Approved Separations (his 2004 discharge proceedings) from the service section of his official military personnel file (OMPF).
2. The applicant states:
* This is unjust due to the limitations it places on his career
* He was separated from the service and has reentered serving honorably his country and unit
* He has learned from his past and the mistakes he made
* He believes he has unmatched potential to excel as a senior noncommissioned officer (NCO) and Sergeant Audie Murphy Club member
* He believes this file should be removed because his separation has been concluded and he is back to doing what NCOs do best, which is lead Soldiers
3. The applicant provides:
* His Case File for Approved Separations
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 March 2004
* Enlistment contract
* Enlisted Record Brief
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 applicants 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 applicants 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 (RA) on 10 January 2002 for a period of 4 years. He completed his training and was awarded military occupational specialty 68W (health care specialist). On 30 March 2004, he was discharged under honorable conditions (a general discharge) for misconduct (commission of a serious offense).
3. On 12 August 2005, the Army Discharge Review Board denied his request for an honorable discharge.
4. He reenlisted in the RA on 30 November 2006 and has remained on active duty through continuous reenlistments. He was promoted to staff sergeant on
1 December 2009.
5. A review of the service section of his OMPF on the interactive Personnel Electronic Records Management System revealed a copy of his 2004 Case Files for Approved Separations.
6. 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 Army Personnel Qualification Records. Table 2-1 provides that the Case Files for Approved Separations will be filed in the service section of the OMPF.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the Case Files for Approved Separations is unjust due to the limitations it places on his career.
2. His desire to have his 2004 discharge proceedings removed from his files for career advancement purposes is understandable. However, he was discharged for misconduct, which is a significant. Promotion and school selection board members are experienced and capable of distinguishing between an indiscretion and a "problem" record of service. In the event a selection choice comes down between two Soldiers with an equal record of service, all information properly filed on an OMPF must be available to board members in order to equitably make their selection choice. Given the above and the fact the Case Files for Approved Separations was properly filed on his OMPF, it would not be equitable to remove the Case Files for Approved Separations from the service section of the applicant's OMPF, and it should remain there as a historical record.
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) AR20120004654
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ABCMR Record of Proceedings (cont) AR20120004654
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