AR20160005570

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160005570

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x_____ ____x____ ___x__ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160005570

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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.

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160005570

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 removal of the summary court-martial (SCM) order and allied documents that are filed in the restricted section of his Official Military Personnel File (OMPF) in his Army Military Human Resource Record (AMHRR).

2. The applicant states the SCM order that was issued in January 2001 while he was a member of the Army National Guard (ARNG) is precluding him from recruiter and drill sergeant duty. He adds that he was selected for recruiter duty; however, the SCM is a Type 1 disqualification.

3. The applicant provides copies of his NGB Form 22 (Report of Separation and Record of Service), Enlisted Record Brief, and nine DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Reports (NCOERs)).

CONSIDERATION OF EVIDENCE:

1. An NGB Form 22 shows the applicant enlisted in the ARNG of the United States and Louisiana ARNG (LAARNG) on 10 May 1996, was honorably separated on 9 May 2002 based on completion of active status commitment, and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation. It also shows he was awarded military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator) and that he had completed 6 years of net service this period.

2. The applicant enlisted in the Regular Army (RA) on 1 June 2004. He is currently serving as a sergeant first class (SFC)/pay grade E-7 in MOS 12N (Horizontal Construction Engineer). He was promoted to SFC effective
1 February 2016.

3. A review of the applicant’s OMPF/AMHRR revealed a copy of Headquarters, 527th Engineer Battalion (Combat Heavy), Ruston, LA, Court-Martial Convening Order Number 019-001, dated 19 January 2001, a DA Form 2329 (Record of Trial by SCM), dated 20 January 2001, and allied documents. It shows the following charges against the applicant under the Uniform Code of Military Justice (UCMJ):

* Charge 1: Article 115, Malingering (two specifications)
* Charge 2: Article 92, Dereliction (five specifications)
* Charge 3: Article 91, Disrespect toward an NCO (one specification)

a. The DA Form 2329 shows the applicant was advised of his rights, afforded the opportunity to consult with counsel, was not represented by counsel, and did not object to trial by SCM.

b. On 20 January 2001, the SCM found the applicant guilty of Charge 2 (five specifications) and Charge 3 (one specification). He was found not guilty of Charge 1 (two specifications).

c. His adjudged sentence was forfeiture of one month’s base pay; reduction to E-1; and confinement for 7 days, 4 days suspended for 1 year with the stipulations that the applicant:

(1) attend all designated assemblies and drills at the proper time and place, and

(2) provide documentation from a qualified medical care provider concerning his injuries or his release from medical care no later than 3 March 2001.

d. On 20 January 2001, the SCM convening authority approved the sentence and ordered the sentence executed.

e. The SCM order, DA Form 2329, and allied documents (16 pages) are filed in the restricted section of the applicant’s OMPF.

4. A further review of the applicant’s OMPF/AMHRR shows that he has received nine NCOERs covering the period 1 April 2008 through 5 May 2015.

a. The NCOERs show the applicant’s raters consistently indicated that he possessed the Army Values and he received ratings of “excellence” and “success” in NCO responsibilities. They also assessed his overall potential for promotion and/or service in positons of greater responsibility as “among the best” (five box checks) and “fully capable” (four box checks).

b. The senior raters assessed his overall performance as “successful” (three “1” box checks and six “2” box checks) and his potential for promotion and/or service in positons of greater responsibility as “superior” (seven “1” box checks and two “2” box checks).

REFERENCES:

1. Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file.

a. Table B-1 (Authorized Documents) provides guidance for filing court-martial orders, as follows: File in the performance folder when there is an approved finding of guilty on at least one specification. If all approved findings are not guilty, file in the restricted folder.

b. 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 information in this section is controlled. It may not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Headquarters, Department of the Army selection board proponent. Documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier’s service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

DISCUSSION:

1. The applicant contends that the SCM order and allied documents that are filed in the restricted section of his OMPF should be removed because it has kept him from career-enhancing assignments.

2. The applicant’s service since the SCM is noteworthy and it is acknowledged that the SCM may have prevented the applicant from eligibility/selection for certain special assignments.

3. The evidence of record shows the SCM was properly conducted with no indication of a violation of the applicant’s rights, the findings and sentence were approved by the SCM convening authority, and the SCM order and allied documents are filed in the restricted section of his OMPF.

4. The governing regulation shows court-martial orders will be filed in the performance folder when there is an approved finding of guilty on at least one specification. If all approved findings are not guilty, file in the restricted folder.

a. The applicant was found guilty of Charge 2 (five specifications) and Charge 3 (one specification), and found not guilty of Charge 1 (two specifications). As such, the proper filing of the court-martial order is the performance folder of his OMPF.

b. However, no action is being taken by the Board to correct the filing of the court-martial order in this instance because that would be tantamount to penalizing the applicant for applying.

5. By regulation, in order to remove a document/record from the OMPF, there must be compelling evidence to support its removal.

a. There is no evidence of record that shows the SCM was convened and/or approved in error or that it was unjust.

b. The applicant failed to submit evidence of a compelling nature to show that the SCM order that is filed in the restricted section of his OMPF is untrue, in error, or unjust.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160005570

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160005570

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2