PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 October 1999                   
	DOCKET NUMBER:   AR1999023769

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Carol Jo Suiter		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the DA Form 2173, Statement of Medical Examination and Duty Status, on the General Administrative Data and Health File sections of his Official Military Personnel File (OMPF) be removed.

3.  The applicant states that, since the entire line of duty investigation is on the restricted section of his OMPF, he feels it is not necessary to be filed in the other sections.

4.  The applicant’s military records show that he was commissioned on                6 December 1979, served on active duty from 1980 until 1983 and then entered the U. S. Army Reserve.

5.  On 28 May 1995, the applicant was involved in a boating accident that resulted in multiple facial injuries.  DA Form 2173 is annotated “Injuries due to suspected misconduct or negligence and suspected abuse of alcohol.”

6.  On 27 June 1995, a line of duty investigation was initiated.  The DA Form 2173 was exhibit B of the investigation packet.  On 28 September 1995, the final determination was “in line of duty.”  The investigation packet is filed on the applicant’s restricted fiche but exhibit B (the DA Form 2173) is missing.  The DA Form 2173 is filed on the General Administrative Data section of his OMPF.  It is also filed on the Health File section of his OMPF, along with his initial, June 1979 Report of Medical Examination and one record of treatment dated 18 August 1993.

7.  Army Regulation 600-8-104 controls the filing of documents in military personnel records.  In pertinent part, it states that DD Form 261, Report of Investigation – Line of Duty and Misconduct Status and allied documents will be filed on a soldier’s restricted fiche.  DA Form 2173 will be filed on the General Administrative Data section.  (No mention of the Health Side section is made.)

CONCLUSIONS:

1.  The Board concludes that, while there is no evidence of Government error, an injustice has occurred in this case.

2.  In accordance with regulation, the DA Form 2173 is properly filed on the General Administrative Data section of the applicant’s OMPF.  The regulation does not state whether or not it is to be filed on the Health File section, but considering the other two documents filed in that section it does not appear to be an essential document.  The DA Form 2173 was an allied document with the DD Form 261 but it is not filed on the restricted fiche with the line of duty investigation packet.

3.  The Board concludes that, although the DA Form 2173 is properly filed on the General Administrative Data section, it may prove prejudicial to the applicant’s interests and detrimental to the Army’s interests.  The line of duty investigation determined his boating accident was in the line of duty and neither misconduct nor negligence nor the abuse of alcohol was involved.  A document that indicates the applicant’s injuries may have been the result of misconduct, negligence or abuse of alcohol, without reference to the explanatory allied documents available on the restricted fiche, should not be allowed to be seen by any type of board that may judge his potential for a further military career.  

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by transferring the DA Form 2173 and all related documents from both the General Administrative Data and Health Side sections of the applicant’s OMPF to the restricted fiche of his OMPF.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rvo___  __rjw___  __cjs___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023769	
SUFFIX		
RECON		
DATE BOARDED	19991021	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.		
3.		
4.		
5.		
6.