IN THE CASE OF:  	  

		BOARD DATE:  19 May 2015	  

		DOCKET NUMBER:  AR20140015671 


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 either the reversal of the action or removal of any documents related to unsatisfactory participation during his service in the U.S. Army Reserve (USAR) for the period 29 August 1991 to 25 January 2000.

2.  The applicant states, in effect:

* in 1999 a letter of unsatisfactory participation was placed in his record
* a number of negative events occurred in his life that year
* he was involved in a fatal automobile accident in which three persons died
* he faced lawsuits, loss of employment, and imprisonment
* litigation on this accident was finalized two years after the event
* immediately following the accident, he was ordered to attend therapy as a condition of employment
* he informed his section chief and commander, but the information was not transmitted to the right people
* as a result he was placed in the Individual Ready Reserve (IRR)
* had he realized the consequences, he would have voluntarily requested placement in the IRR so as to preclude any negative actions
* he has since reenlisted three times without restriction and received bonuses as well
* he has spent nearly five years in a mobilized status during his current period of service
* he mentions all this because he wishes to show he is now a more mature and focused Soldier
* the document showing unsatisfactory participation is the only blemish in an otherwise spotless record
* on 18 April 2013, he had asked the Board to remove orders which showed unsatisfactory participation; his request was closed without action because those orders could not be located and he could not provide a copy
* the unit to which he was assigned at the time no longer exists; were it still active he would have made his request to the chain of command there
* he asks the Board to favorably consider his request and either reverse or remove this reference to unsatisfactory participation from his record

3.  The applicant provides:

* Orders D-01-004829, dated 25 January 2000, issued by USAR Personnel Command, showing the applicant was honorably discharged from the USAR effective 25 January 2000
* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period 1 December 2012 through 30 November 2013
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 3 December 2011 and 7 January 2013, respectively

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 first enlisted in the USAR on 29 August 1991.  After completing initial training, he was awarded military occupational specialty (MOS) 71L (currently shown as 42A) (Administrative Specialist).  During this term of service, the highest rank/grade held was specialist/E-4.  He reenlisted in the USAR on 13 December 2004 and is currently serving in MOS 68W (Health Care Specialist) with the rank/grade of staff sergeant/E-6.

3.  A review of his Interactive Personnel Electronic Records Management System (IPERMS) file does not reveal any documents related to unsatisfactory performance during his first term of service in the USAR.

4.  His military personnel records jacket (MPRJ) from that period does contain one, and only one, related document: Orders 146-14, dated 26 May 1999, issued by Headquarters, 81st Regional Support Command.  The orders show, effective 26 May 1999, the applicant was reassigned from the 330th Combat Support Hospital (Hospital Unit Base (HUB) to the USAR Control Group (Reinforcement) due to unsatisfactory participation

5.  The applicant provides:

	a.  An NCOER for the period 1 December 2012 through 30 November 2013 which essentially shows the applicant received an excellent evaluation for that period.  In Part IV (Army Values/Attributes/Skills/Action) all blocks show "Yes."  In Part IV (Rater)(Values/NCO Responsibilities), he received a rating of "Excellence" in four out of five categories.  His rater showed him as being "Among the Best" and his senior rater rated his performance as 1/successful and potential as 1/superior.

	b.  His DD Form 214 for the period ending 7 January 2013 shows he completed 11 months and 29 days of net active creditable service this period.  It also indicates he completed 4 years, 7 months, and 17 days of net active service this period and 16 years, 1 month, and 8 days of total prior inactive service.  He was awarded or authorized the :

* Army Reserve Components Achievement Medal
* National Defense Service Medal with one bronze service star
* Global War on Terrorism Service Medal
* NCO Professional Development Ribbon
* Army Service Ribbon
* Armed Forces Reserve Medal with "M" Device
* Parachutist Badge

6.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder 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 or moved to another part of the OMPF unless directed by certain agencies, to include this Board.

7.  Army Regulation 600-37 (Unfavorable Information) provides in paragraph 7-2 that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  In May 1999, the applicant was transferred from his USAR unit to the USAR Control Group (Reinforcement) due to unsatisfactory participation.  The applicant requests either this action be reversed or all related documents be removed.  He bases his request on the contention he kept his immediate chain of command informed, but they did not notify the headquarters which ultimately executed the transfer.  Additionally, he points out an exemplary record of service during his current period of enlistment in the USAR.

2.  A review of his OMPF reveals only one related document, the order which moved him from his USAR unit to the USAR Control Group.

3.  Army Regulation 600-8-104 states, once placed in the OMPF, a document becomes a permanent part of that file.  It can only be either moved to another part of the file or removed at the direction of certain agencies, to include this Board.

4.  Army Regulation 600-37 states, once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF (emphasis added).

5.  While the applicant offers evidence in mitigation, that evidence does not include clear and convincing proof either the action or the order which addressed his unsatisfactory participation were untrue or unjust.  Based upon the foregoing, there is insufficient 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)                                         AR20140015671





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ABCMR Record of Proceedings (cont)                                         AR20140015671



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