IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20120005900 


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 transfer of summary court-martial (SCM) documents from the performance to the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states he made a mistake and he was punished.  Since then, he has been diligent in the execution of his duties as a noncommissioned officer (NCO).  He also states that having the documents in the performance section of his OMPF creates a "double jeopardy" each time his record is reviewed by a promotion board.

3.  The applicant provides:

* DD Form 2329 (Record of Trial by SCM), dated 26 June 2007
* DD Form 1059 (Academic Evaluation Report), dated 24 September 2009
* Park University College Transcripts, printed on 19 December 2011
* Six DA Forms 2166-8 (NCO Evaluation Report) from 25 June 2007 through 4 October 2011
* Two Army Commendation Medal Certificates
* Two Certificates of Recognition
* Three Certificates of Training


CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 5 February 1993 and he is currently serving on active duty.

2.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 October 2002.

3.  A DD Form 2329 shows the applicant was found guilty by SCM of one specification of violating Article 91 of the Uniform Code of Military Justice for assaulting an NCO on 27 March 2007 by kicking him in the face with the butt of a knife.

	a.  On 25 June 2007, he was sentenced to reduction to sergeant (SGT)/E-5.

	b.  On 26 June 2007, the convening authority approved the sentence.

4.  A review of the applicant's OMPF maintained in the interactive Personnel Electronic Records Management System (iPERMS) revealed the following documents are filed in the performance section of his OMPF:

* DD Form 2329, dated 26 June 2007
* DD Form 458 (Charge Sheet), dated 9 June 2007
* DA Form 4430-R (Report of Result of Trial)
* Enlisted Reductions - Summary, dated 28 June 2007

5.  The applicant was again promoted to SSG/E-6, effective 1 May 2008.

6.  In support of his request the applicant provides:

	a.  a DA Form 1059 that shows he completed the Construction Engineer Supervisor Advanced NCO Course during the period 11 August through
24 September 2009.

	b.  his Park University transcripts that show he completed a total of 80 credit hours with a 4.0 grade point average.

	c.  Six DA Forms 2166-8 that show in Part V (Overall Performance and Potential):

		(1)  the rater placed an "X" in the "Among the Best" block for service in positions of greater responsibility; and

		(2)  the senior rated placed an "X" in the "1" (Successful) block for overall performance and an "X" in the"1" (Superior) block for overall potential for promotion and/or service in positions of greater responsibility.

	d.  Two Army Commendation Medal Certificates that show he was awarded both awards for meritorious service for the period 13 December 2005 to
2 October 2009 and 8 October 2009 to 4 October 2010.

	e.  Headquarters, U.S. Army Recruiting Command Form 1908, that shows the Sergeant Major of the Army, Operation Smart Award, was presented to him for outstanding performance and commitment to the Sergeant Major of the Army Recruiting Team during the period 1 July to 30 September 2008.

	f.  Fort Leonard Wood Form 1341-3 (Certificate of Achievement), dated
24 September 2009, that shows he was recognized for his outstanding achievement as the Sapper Spirit Leadership Award recipient.

	g.  Three DA Forms 87 (Certificates of Training) that show he completed the:

* Area Support Group Kuwait, Equal Opportunity Leaders Course
* Army Basic Instructor Course
* Small Group Instruction

8.  MILPER (Military Personnel) Message Number 11-291, issued on
26 September 2011, announced the eligibility criteria for the Fiscal Year 2012 (FY12) Sergeant First Class (SFC) Promotion Board.  It shows the primary zone was 3 February 2008 and earlier and the secondary zone was 4 February 2008 through 4 February 2009.

9.  The U.S. Army Human Resources Command (HRC) website shows the FY12 SFC Promotion Board met during the period 30 January to 10 February 2012.  The results of the Board have not yet been announced.

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

	a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.  Depending on the purpose, documents will be filed in the OMPF in one of the three sections:  performance, service, or restricted.

	b.  Table 2-1 shows the DD Form 2329 will be filed in the OMPF together with the DD Form 458, and memorandum, opinion, or letter of legal review.

		(1)  The documents will be filed in the performance section when there is an approved finding of guilty on at least one specification.

		(2)  If all approved findings are not guilty, file in the restricted section.

   c.  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, U.S. Army Human Resources Command, or the Headquarters, Department of the Army, selection board proponent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the SCM documents that are filed in the performance section of his OMPF should be transferred to the restricted section because he has demonstrated his resiliency as an NCO and the documents create a "double jeopardy" each time his record is reviewed by a promotion board.

2.  The applicant's contentions were carefully considered.

	a.  The fact that the applicant was promoted back to SSG/E-6 less than a year after being reduced as a result of the SCM is noteworthy.

	b.  His achievements, awards, and performance of duty since the SCM are acknowledged.

	c.  It is also noted that this information is appropriately documented in the performance section of his OMPF.

3.  The governing Army regulation shows that the DD Form 2329 (with the allied documents) is to be filed in the performance section of the OMPF.  In addition, the evidence of record shows the SCM documents in this case are properly filed in the applicant's OMPF.

4.  The OMPF is a collection of records that offer a historical perspective of individual's military service.  The SCM documents under review are an important part of the applicant's military service record and serve to offer a complete picture of the applicant's overall record of service.


5.  The evidence of record shows the applicant was considered for promotion (below the zone) by the FY12 SFC Promotion Board.  The results of the Board have not yet been released.  Therefore, the applicant’s contention that having the documents in the performance section of his OMPF creates a "double jeopardy" each time his record is reviewed by a promotion board is unfounded.  In any event, non-selection for promotion from below the zone of consideration does not place a Soldier behind his/her contemporaries with respect to normal career progression.  Moreover, non-selection for promotion based on the review of an individual's overall record of performance does not constitute "double jeopardy."

6.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20120005900



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ABCMR Record of Proceedings (cont)                                         AR20120005900



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