BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20140020169 


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 his General Court-Martial (GCM) be removed from his official military personnel file (OMPF) or placed in the restricted folder.

2.  The applicant states, on 29 April 2008, he was court-martialed in Wurzburg, Germany, reduced in rank, and ordered back to the continental United States (CONUS).  He was later retired due to his medical conditions and was placed on the Temporary Disability Retirement List (TDRL) awaiting final disposition/ recommendation orders.  He would like his GCM removed or placed in the restricted folder of his OMPF because this derogatory information is accessible by other agencies via certain channels, such as home loan and credit searches.  He does not want these agencies to have access to this derogatory information.  He served his country and would like to put the past behind him and move forward with his life.  

3.  The applicant provides no additional evidence.  

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 Regular Army on 27 March 2000.  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.  GCM Order Number 23, issued by the Seventh U.S. Army Joint Multinational Training Command on 7 October 2008, shows he was convicted of:

* committing an assault upon Ms. N.M. by strangling her about the neck, with a telephone cord, with a means and force likely to produce death or grievous bodily harm, at or near Munich, Germany, on or about                 9 December 2007
* unlawfully striking Ms. N.M. on the head repeatedly with a closed fist at or near Munich, Germany, on or about 9 December 2007
* unlawfully entering the dwelling house of Ms. N.M., with intent to commit kidnapping therein, at or near Munich, Germany, on or about 9 December 2007

The sentence was adjudged on 15 April 2008 and the approved sentence included a reduction in grade to private/E-1, forfeiture of $898.00 of pay per month for 4 months, and confinement for 6 months.  

4.  His record contains a memorandum, dated 18 November 2009, which states the Criminal Law Division, Office of the Judge Advocate General completed the appellate examination of his general court-martial.  The record of trial in his case contained sufficient legal and competent evidence to support the approved findings of guilty and the sentence beyond a reasonable doubt.  The findings and sentence in his case were now final and conclusive.

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty by reason of a temporary disability on 8 May 2011.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records), in effect at the time, provided the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF.  Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  
	a.  Table 2-1 (Composition of the OMPF) shows that GCM orders are filed in the performance section of the OMPF when there is an approved finding of guilty on at least one specification.  If all approved findings are not guilty, the order is filed in the restricted section of the OMPF.

	b.  Chapter 2 of this regulation also states 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 the information in the restricted section is controlled and not routinely released to promotion selection boards.  This Army regulation also states that documents authorized for filing in the restricted section are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF.  It also serves to protect the interests of the Soldier and the Army.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management), currently in effect, establishes the responsibilities, policies, and procedures for maintaining and controlling the Army Military Human Resource Records (AMHRR), which includes the OMPF.  It states that once a document is placed in the AMHRR, 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 authorities.

	a.  Chapter 3, currently in effect, states the AMHRR Management Program is an essential military personnel information management program.  The program outlines responsibilities for the archiving and storage of data, information, and documents required for filing in the AMHRR.  Personnel information and documents that comprise the AMHRR are processed into the integrated Personnel Electronic Records Management System for storage and future use.  

	b.  Table 3-1 states the performance folder contains performance related information to include evaluations, commendatory documents, specific disciplinary information, and training/education documents.  However, the restricted folder contains documents that may normally be considered improper for viewing by selection boards or career managers.

8.  Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states that titling only requires credible information that an offense may have been committed.  It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  
	a.  This instruction also provides that titling of an individual or entity is an operational rather than a legal decision.

	b.  Credible information is defined as information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts in question are true.

DISCUSSION AND CONCLUSIONS:

1.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and any corrections to other parts of the OMPF.  

2.  Army regulations state that once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.  

3.  As required by Army regulation, the GCM order was properly filed in the performance folder of the applicant's OMPF.  

4.  The pertinent Army regulations stipulate that in order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence or argument indicating that the GCM was filed in error or that it was unjust or untrue.  

5.  It is likely that an investigation occurred, or that law enforcement officials were involved in the circumstances surrounding his GCM due to the nature of the charges for which he was convicted.  The convictions show there was credible information.  

6.  If law enforcement officials had credible information that an offense may have been committed he would have been charged with the offenses and administratively titled in the DCII; this information would be available to certain outside agencies.  






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)                                         AR20140020169





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ABCMR Record of Proceedings (cont)                                         AR20140020169



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