IN THE CASE OF:	  

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120013854 


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 his DD Form 2329 (Record of Trial by Summary Court-Martial) to the restricted portion of his Army Military Human Resources Record (AMHRR).

2.  The applicant states:

   a.  After finding the injustice in his records, he believes the punishment has served its intended purpose.
   
   b.  At the time of the incident he was young and immature.  The acts he committed as a private during his prior service are now halting his progression as a staff sergeant.
   
   c.  Since the incident, he was honorably discharged in June 2000, reentered service in November 2001, and has become a model Soldier.
   
   d.  Maintaining the DD Form 2329 in his AMHRR is hindering his career advancement and his leaders are telling him he needs to have it removed.
   
3.  The applicant provides:

* self-authored statement
* DD Form 2329
* letter of recommendation
* Enlisted Record Brief
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlistment/Reenlistment Documents

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 11 June 1997.  He completed training and was awarded military occupational specialty 12B (Combat Engineer).  On 10 June 2000, he was honorably released from active duty.  On 27 November 2001, he once again enlisted in the RA and he currently serves in MOS 12B.

2.  His AMHRR contains a DD Form 2329, dated 6 October 1999.  It shows he was charged with violating the following Articles of the Uniform Code of Military Justice (UCMJ) and found guilty of:

* Charge I, Article 92 (disobeying a lawful general regulation, drinking underage)
* Charge II, Article III (driving while drunk)
* Charge III, Article 128 (assault on a sentinel)

3.  The applicant’s record contains numerous awards and decorations which include, but are not limited to:  the Bronze Star Medal, 4 Army Commendation Medals, the Combat Action Badge, as well as the Iraq Campaign Medal.  His record also contains Noncommissioned Officer Evaluation Reports from August 2006 through February 2012 in which he was rated for overall potential for promotion and/or service in positions of greater responsibility as either "fully qualified" or "among the best" with supportive comments.  In addition, his senior raters found the applicant’s overall performance and potential for promotion merited successful and superior ratings respectively. 

4.  The applicant provides a letter of recommendation from his immediate commander to transfer the DD Form 2329 to the applicant's restricted portion of the AMHRR.  His commander also attests to the applicant's commitment to maintaining the highest professional standards and rehabilitation since his misconduct over 12 years ago. 

5.  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.
6.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the AMHRR) shows the DD Form 2329 is filed in the "Performance" folder when there is an approved
finding of guilty on at least one specification.  

7.  Paragraph 2-3 (Composition of the AMHRR) of Army Regulation 600-8-104 provides that the restricted section of the AMHRR 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 will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent.  This paragraph also provides that documents in the restricted section of the AMHRR 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 AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 2329 should be transferred to the restricted portion of his AMHRR.

2.  The letter the applicant provided and the awards and evaluations that he received speak highly of the applicant’s performance of duty and potential for continued service in positions of increased responsibility.  

3.  However, evidence confirms the applicant was convicted by a summary court-martial of violating Article(s) 92, 111, and 128 of the UCMJ.  By regulation, court-martial orders will be filed in the performance portion of the AMHRR when there is an approved finding of guilty on at least one specification.  Once placed in the AMHRR, the document becomes a permanent part of that file.  

4.  Therefore, his request to transfer his DD Form 2329 to the restricted section of his AMHRR 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)                                         AR20120013854



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ABCMR Record of Proceedings (cont)                                         AR20120013854



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