IN THE CASE OF:  							  

		BOARD DATE:  1 October 2015	  

		DOCKET NUMBER:  AR20150002093 


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, in effect, the removal of the Army Special Review Board (ASRB) decision memorandum, dated 17 April 2009, and ASRB Record of Proceedings (ROP) from his official military personnel file (OMPF).

2.  The applicant states his My Board File (MBF) lists an "Army Board for Correction of Military Records (ABCMR) Decision and ROP" and he is requesting the ASRB ROP and related memorandum be removed from his MBF.  The ROP addresses an Officer Evaluation Report (OER) for the period 13 October 2006 through 12 October 2007 when he was serving in the rank/grade of first lieutenant (1LT)/O-2.  The OER is masked and is not considered for the major (MAJ) promotion board process.

3.  The applicant provides three pages of email.

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’s records show he was serving in the New York Army National Guard (NYARNG) in the rank of 1LT when he received a referred OER in November 2007 for the rated period 13 October 2006 through 12 October 2007.  The OER was subsequently filed in the performance folder of his OMPF.  He appealed the OER and submitted a request for it to be removed from his OMPF.

3.  His case was considered by the ASRB on 9 April 2009 in Docket Number AR2009000907 and the Board recommended his request be denied.  The ASRB ROP stated, in part, the Board determined the decision memorandum would be filed in his OMPF beside the contested OER.

4.  In the decision memorandum for the Chief, National Guard Readiness Center, dated 17 April 2009, subject:  OER Appeal for [The Applicant], social security number (SSN)] Case Number AR20090000907, from the President, ASRB, the National Guard Bureau (NGB) was informed the unanimous vote of the Board members to deny the appeal was approved and the NGB was directed to notify the applicant of the decision and provide him a copy of the [attached] ROP.

5.  On 20 April 2009, both the decision memorandum and attached ASRB ROP were filed together in the performance folder of his OMPF.  These documents and the contested OER for the rated period ending 12 October 2007 are currently filed in the performance folder of his OMPF.

6.  The applicant continued to serve in the NYARNG and was promoted to captain (CPT) on 27 September 2012.  On 13 June 2014, he was honorably released from the NYARNG in the rank of CPT and transferred to the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR).  The NGB Form 22 (Record of Separation and Record of Service) he was issued shows he was credited with over 26 years of inactive service for retired pay.  He was subsequently assigned to the USAR, 3rd Brigade, Fort Totten, NY.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides 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 documents in the OMPF.  Table B-1 (Authorized documents), updated on 27 August 2015, shows that the ASRB denial decision memorandum is filed in the performance folder with the evaluation that was appealed.  The ASRB ROP is filed in the restricted folder of the OMPF.
8.  The OMPF is defined as permanent documentation that documents facts related to a Soldier during the course of his or her entire Army career, from time of accession into the Army until final separation, retirement, or discharge.

	a.  The purpose of the OMPF is to preserve documents pertaining to enlistment, appointment, assignments, performance, awards, disciplinary actions, separation, retirement, and any other personnel actions.

	b.  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.

9.  The U.S. Army Human Resources Command's (HRC) website contains a video script, dated 15 May 2015, subject:  Selection Board Process Script, wherein MAJ CW, a board recorder for Department of the Army (DA) selection boards stated, in part:  

	a.  Headquarters, DA (HQDA) convenes approximately 80 selection boards each year.  Promotion is not an entitlement; it must be earned.  Before each board convenes a military personnel message is released giving guidance for each particular board.  Once the MBF has opened, you should to go to the HRC website to review your OMPF for currency and accuracy.  MBF is made of documents that are in your OMPF.

	b.  Board members view all the documents found in the MBF using the Army Selection Board System (ASBS).  ASBS is the tool used by the Army for selection boards since 2004 that presents each Soldier’s file in the same format facilitating an effective and efficient assessment.

	c.  The first item a board member will see is the official DA photo, the second item are any letters to the president of the board, and the third is the Officer Record Brief (ORB).  In the OPMF portion of the file, the first items seen are the OERs.  These are the most important documents in the file as they assess both quality of performance and potential to serve at the next higher grade. 

	d.  Next, they move to the commendatory file where they review awards and decorations.  The documents in this file provide the source documents that validate the accuracy of the DA photo and the ORB.  The final area of the OMPF is the training and education file.  This area shows all transcripts from military and civilian training and education completed. 


	e.  If there are any disciplinary documents they will be viewed by the board. These documents will appear at the beginning of the OMPF before the evaluations.  Board members must review all disciplinary documents.  If they fail to do so, ASBS will prompt them to review the documents before moving further into voting.  The system acts as a fail-safe and reminds board members to look at these documents before casting a vote. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms, while the applicant was serving as a 1LT in the NYARNG, he received a referred OER in November 2007.  He appealed the OER and requested it be removed from his OMPF.  On 9 April 2009, his request was denied by the ASRB and on 17 April 2009, by memorandum, the NGB was notified of the Board’s decision.  In accordance with regulatory guidance, the ASRB decision memorandum is properly filed in the performance folder of his OMPF.  There is no error or reason to remove this documents from his OMPF.

2.  However, in contradiction of regulatory guidance, the ASRB ROP, dated 9 April 2009, was apparently misfiled in the performance folder of his OMPF; it should not have.  Although he does not meet the criteria to have the ROP removed from his OMPF, it should be transferred from the performance folder to the restricted folder of his OMPF.

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 ASRB ROP, dated 9 April 2009, from the performance folder to the restricted folder of the applicant’s 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 the removal from his OMPF of the ASRB decision memorandum and ROP.



      ___________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)                                         AR20150002093





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ABCMR Record of Proceedings (cont)                                         AR20150002093



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