IN THE CASE OF:  	  

		BOARD DATE:  4 November 2014	  

		DOCKET NUMBER:  AR20140018028 


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 page 11 of a summary court-martial from a different service (the U.S. Marine Corps (USMC)) be removed from his official military personnel file (OMPF).   

2.  The applicant states:

	a.  The incident happened in 2003 while he was serving in the USMC.  The charge was dropped in 2003; but stayed on file, a charge he received that had no disposition for 10 years.  The entry is on his interactive Personnel Electronic Records Management System (iPERMS) file and should be deleted.

	b.  He received counseling; no formal administrative or judicial action was taken.  The incident happened in February 2003.  He deployed in March 2003 and was honorably discharged from the USMC in August 2003 after serving for 4 years.  He had a 5-year break in service before enlisting in the Army.  He doesn't want his career to be hindered because of the document.

3.  The applicant provides a DD Form 396 (Police Record Check), page 11 (Administrative Remarks (1070)) of a Navy-MC (NAVMC) Form 118(13) (Record of Conviction by Court-Martial), and a facsimile (fax).  

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 USMC on 21 June 1999.  He was honorably released from active duty on 9 August 2003 in the rank/grade of corporal (CPL)/E-4 by reason of completion of required active service and he was transferred to the USMC Reserve.

3.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows the effective date of his promotion to CPL as 1 June 2003.  He completed 4 years, 1 month, and 19 days of creditable active service.

4.  He enlisted in the Regular Army (RA) on 30 January 2009 in the rank/grade of specialist/E-4.  On 1 February 2010, he was promoted to sergeant/E5.  On 1 September 2011, he was promoted to staff sergeant/E-6 and is currently serving on active duty in the RA.

5.  He provides:

   a.  A DD Form 369, dated 6 January 2009, wherein the "Yes" block of item 12 (Has the Applicant a Police or Juvenile Record, to Include Traffic Violations?) of this form is checked with the entry "See Attachment."
   
   b.  The attachment, page 11 of an NAVMC Form 118(13), dated 5 February 2003, in part, shows the applicant acknowledged he was being counseled for his lack of integrity for being associated with the wrongful appropriation of a fellow Marine's flak jacket.  It stated the following corrective action was recommended, he would obey all laws and USMC orders and regulations at all times, he must demonstrate the integrity and responsibility expected of all Marines, and he must understand that further violations of the Uniform Code of Military Justice (UCMJ) could result in disciplinary action.  The counseling/warning entry was made to afford him the opportunity to undertake the recommended corrective action and he could submit a statement/rebuttal within 5 days.  He declined to submit a statement on his own behalf and authenticated this document by placing his signature in the appropriate block.
   c.  A fax to the Federal Bureau of Investigation (FBI), dated 29 October 2013, from the Naval Criminal Investigative Service (NCIS), wherein, in part, it stated after a review of the information in the FBI's criminal file pertaining to the applicant, the file should be updated as follows:  Arrest date - 25 January 2003; arresting agency - NCIS, Washington Navy Yard, DC; charge - larceny/personal property.  Delete entry page 11 - counseling issued, no formal administrative or judicial action taken.  

6.  A review of his records located on iPERMS revealed the DD Form 369 and page 11 of NAVCM Form 118(13) are filed in the performance folder of his OMPF.

7.  Army Regulation 600-8-104 (Army Human Resource Records (AMHRR) Management) prescribes the policies governing the OMPF and its composition.  The regulation states once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authority.

8.  Military Personnel Message 13-024, Subject: Changes to Documents Authorized for Filing in the AMHRR and/or IPERMS, states effective immediately Army Personnel Records Division (APRD) will update the list of Authorized Documents for filing in the AMHRR quarterly.  The APRD list updated on 2 October 2014 states:

	a.  DD Form 369 will be filed in the performance folder of the OMPF when the check is part of enlistment, reenlistment, or appointment packet. 

	b.  Record of Trial by Summary Court-Martial will be filed in the performance folder of the OMPF when there is an approved finding of guilty on at least one specification; file in the restricted folder if all findings are not guilty; file in the restricted folder if all charges and specifications are later dismissed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with UCMJ action under a summary court-martial during his period of service in the USMC for being associated with larceny of personal property.  It appears the charges were subsequently dismissed and instead he was counseled that further violations of USMC orders and regulations would not be tolerated.  



2.  In conjunction with his enlistment in the RA in January 2009, a police records check was completed and page 11 of NAVCM Form 118(13) was filed in the performance folder of his OMPF as an attachment to the DD Form 369.  The specific source of this document is unknown.

3.  He provides a fax from NCIS to the FBI, dated October 2013, wherein it shows NCIS provided an update to the FBI and stated page 11 of the FBI file pertaining to the applicant should be deleted as only counseling was issued to the applicant and no formal administrative or judicial action was taken.

4.  However, in accordance with Army regulatory guidance, Records of Trial by Summary Court-Martial will be filed in the restricted folder of the OMPF if all charges and specifications are later dismissed.  Therefore, it would be appropriate to move the DD Form 369 and the attached page 11 of the NAVMC Form 118(13) from the performance folder to the restricted folder of his OMPF.

5.  In view of the foregoing, he is not entitled to full relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* moving the DD Form 369, dated 6 January 2009, and the attached page 11 of NAVMC Form 118(13) from the performance folder to the restricted folder of the applicant's OMPF
* ensuing this Record of Proceedings is filed in the restricted folder of his OMPF



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to deleting the DD Form 369 and page 11 of NAVMC Form 118(13) from his OMPF.



      __________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)                                         AR20140018028



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ABCMR Record of Proceedings (cont)                                         AR20140018028



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