IN THE CASE OF:  	  

		BOARD DATE:  6 October 2015	  

		DOCKET NUMBER:  AR20150014396 


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 the removal of a DD Form 369 (Police Record Check) and incident report provided by Bloomington Police, MN and associated documents from his record or transfer of the documents to the restricted portion of his record.

2.  The applicant states, as noted in the incident report, the police never questioned him nor were charges ever pressed against him.  The fact that this report is in his performance file has caused him problems both at the time of his initial enlistment in 2004 and when he reenlisted.  As a result of these reports, people assume that he was arrested and charged with sexual misconduct.

3.  The applicant provides copies of the Department of the Army Suitability Evaluation Board (DASEB) decision, a DD Form 369 with incident report and associated documents.

CONSIDERATION OF EVIDENCE:

1.  On 7 October 1994, as a 17 year old minor, the applicant was involved in an alcohol/sexual misconduct incident.  The incident report indicates the applicant was one of a group of minors who had an after homecoming party in rented hotel rooms.  The applicant was reported as having been the one making the room reservations and he brought a keg of beer.  A witness reported the applicant stated he had oral sex with the female involved and he inserted three fingers into her vagina.  The complainant reported after drinking 3 or 4 beers she fell asleep. When she woke up and went to the bath room she realized she only had on her shirt and noticed light blood from her vagina. 

2.  The incident was reported to police following a verbal altercation at the high school the following Friday.  The report states that no contact with the applicant was made and the case was referred to the juvenile division.  

3.  On 24 October 1994, the investigating detective spoke with the complainant and her parents.  The complainant initially indicated she was going to press charges; however, during the preliminary investigation the complainant and her parents elected not to pursue the matter legally.  Based on their decision no further action was taken. 

4.  Ten years later, at age 27, on 19 October 2004 the applicant enlisted in the Regular Army with a DD Form 369 that was made a part of the enlistment packet and official record.  An enlistment waiver appears to have been granted at that time.

5.  The applicant served on active duty as a Health Care Specialist/Special Forces Medical Sergeant/Infantryman and was released from active duty on 18 April 2011 and transferred to the U.S. Army Reserve Control Group (Reinforcement).  

6.  In July 2012, the applicant sought enlistment.  As a part of his enlistment process a second police records check was requested in Bloomington, MN, that resulted in a copy of the incident report (noted in paragraph 3) being forwarded and included in his enlistment packet.  Because of the nature of the incident, his enlistment application was forwarded for an enlistment suitability review.  

7.  On 22 August 2012, the applicant was granted a waiver and signed his enlistment contract entering active duty on 12 September 2012.  

8. On 4 July 2014, the applicant, then a sergeant first class, E-7, reenlisted for a period of 6 years. 

9.  The applicant applied to the DASEB to have two DD Forms 369 and other documents removed from the service portion of his record.

10.  On 8 June 2015, the DASEB granted the applicant partial relief by removing some duplicate documents but voted to deny the removal of the DD Forms 369 and the allied documents currently under consideration.  The copy of their memorandum, appeal correspondence, and Record of Proceedings were directed to be added to the restricted portion of the Army Military Human Resource Record (also known as the official military personnel file (OMPF)).  

11.  His past six Noncommissioned Officer Evaluation Reports (NCOER) have all been marked with "excellence," "Among the Best," and with recommendations to "promote to master sergeant ahead of peers."

12.  Army Regulation 600-37 (Unfavorable Information) sets the policies and procedures to authorize placement of unfavorable information about Army personnel in an individual's personnel files.  Paragraph 3-3d states that records of civilian conviction (to include the record of arrest), or extract thereof, authenticated by civilian authorities, may be filed in the performance portion of the OMPF without further referral to the Soldier.

13.  Army Regulation 600-8-104 prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.

	a.  The OMPF is the historical and authoritative source of authentication of veteran or service-related benefits, entitlements, and services.

	b.  The purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and other personnel actions.

	c.  Appendix F states that the DD Form 369 is to be filed in the service section of the OMPF. 

DISCUSSION AND CONCLUSIONS:

1.  While the incident did not result in any charges being brought against the applicant, there is no evidence that it did not occur or that what happened differs from the DD Form 369/incident report.  The applicant appears to have admitted to other individuals that were present at the time that he, in effect, engaged in sexual activities with a female who was under the influence of alcohol. 

2.  Several factors support transfer of the requested documents to the restricted section of the applicant’s OMPF: 

* the applicant was 17 years old at the time
* the applicant was never interviewed by the police about the incident 
* there was no arrest or conviction related to the incident 
* the incident occurred 10 years prior to his initial enlistment, now 21 years ago
* he has been granted enlistment waivers twice with the last one being just 3 years ago 
* the applicant has given the Army 9 years of commendable service as noted by his NCOER's and his promotion to SFC 
* there is no indication of any similar incidents or allegations

3.  Several factors supporting retaining the requested documents in his OMPF: 

* the applicant has never contended that the incident did not occur
* the nature of the incident was an alcohol-related sexual assault incident
* the military has zero tolerance for the type of activity that the applicant was involved in 
* the applicant’s enlistment waivers will always be a part of his record
* the DASEB voted to retain the documents as they are in his OMPF

4.  Purging the applicant’s record of the DD Form 369 and incident report is not in the best interest of the Army.  However, retaining the DD Form 369 and incident report that details an incident that occurred a significant number of years prior to the applicant's initial enlistment, which he was never officially questioned about, arrested, or convicted of could be considered an injustice.  Moving the documents to the restricted portion of his OMPF would give the applicant partial relief and retain a record of the incident.

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: 
   
   a.  moving the DD Form 369 and incident report provided by Bloomington Police to the restricted portion of the applicant's OMPF; and 
   b.  filing this Record of Proceedings in the restricted portion of the applicant's OMPF.

2.  The Board further determined that the evidence presented was 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 removing the DD Form 369 and incident report 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)                                         AR20150014396



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150014396



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1