AR20160000702

IN THE CASE OF:

BOARD DATE: 3 March 2016

DOCKET NUMBER: AR20160000702

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 DA Forms 4187 (Personnel Action) dated
13 August 2014 and 14 August 2014 relating to his arrest on 12 August 2014 be removed from his Official Military Personnel File (OMPF).

2. The applicant states the arrest was based on false charges from his now ex-wife while they were going through a divorce. All charges were dismissed on
28 November 2014, but the derogatory DA Forms 4187 are still in his OMPF. Retaining these forms in his OMPF is unjust and will lead to discrimination against him during selection boards.

3. The applicant provides copies of:

a. DA Form 4187, dated 13 August 2014, showing the applicant’s duty status changed from present for duty to confined by civilian authorities, effective
1906 hours 12 August 2014.

b. DA Form 4187, dated 14 August 2014, showing his duty status changed from confined by civilian authorities to present for duty, effective 0347 hours,
14 August 2014.

c. An Integrated Colorado Online Network (ICON) report showing the charges against the applicant were dismissed as the evidence was insufficient and/or a critical witness was not presently available. The case was closed on
28 November 2014.

CONSIDERATION OF EVIDENCE:

1. The applicant is a Regular Army lieutenant colonel/O-5.

2. He was placed in civilian confinement effective 1906 hours on 12 August 2014. The ICON report states he was charged with “TAMPERING 2 INTENT INJURY/INCONVEN/ANNOY” and “HARRASSMENT-TELEPHONE-THREAT/OBSCENE.” He was released on bond and his duty status was changed to present for duty effective 0347 hours on 14 August 2014. DA Forms 4187 were completed on 13 and 14 August 2014 to document these events.

3. On 28 November 2014 the charges against the applicant were dismissed and the case was closed. The ICON report states “THE EVIDENCE IS INSUFFICIENT AND/OR A CRITICAL WITNESS IS NOT PRESENTLY AVAILABLE. NO PRIMA FACIE CASE OF THE FILES CHARGES.”

4. The DA Forms 4187, dated 13 and 14 August 2014, are filed in the performance section of the applicant’s OMPF.

5. Army Regulation 600-8-104 (Amy Military Human Resource Records Management) states that once placed in the OMPF, a document becomes a permanent part of that file. The restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. Documents in this file include those that must be permanently kept to maintain an unbroken, historical record of a Soldier’s service, conduct, duty performance, and evaluations.

a. Table 3-1 Table 31
(Official military personnel file folders in the Army Military Human Resource Record ) states:

(1) The performance folder contains performance related information to
include evaluations, commendatory documents, specific disciplinary information, and training/education documents. The primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty. This folder populates various board related applications (for example, Army Selection Board System, National Guard Army Board System).

(2) The restricted folder contains documents that may normally be considered improper for viewing by selection boards or career managers.
Includes masked documents defined in paragraph 3-10.
b. Paragraph 3-10 covers document masking (the act of moving specifically identified documentation from the performance folder to the restricted folder within the OMPF).

DISCUSSION AND CONCLUSIONS:

1. The applicant’s duty status changed on 13 and 14 August 2014 to show he was placed in civilian confinement and released from the confinement and returned to duty. The DA Forms 4187 documenting those duty status changes are placed in the performance folder of his OMPF.

2. The two DA Forms 4187 are part of his permanent record and as such should not be removed. However, in view of the dismissal of the charges, it would be in the best interests of the Army and the applicant to move these forms 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 DA Forms 4187 dated 13 and 14 August respectively, from the performance folder to the restricted folder of his 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 the removal of the DA Forms 4187, dated 13 and 14 August 2014.

____________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) AR20140020343

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont) AR20160000702

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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