MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 June 2000
	DOCKET NUMBER:   AR2000037946

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

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that the summary court-martial proceedings currently contained in the performance section (P-Fiche) of his Official Military Personnel File (OMPF) be transferred to the restricted section (R-Fiche) of his OMPF.

APPLICANT STATES:  In effect, in an earlier application to this Board he did not properly articulate his request.  He requested this Board to remove the summary court-martial conviction completely, but should have requested that that the court findings be transferred to the R-Fiche.  He indicates that he was court-martialed but received no punishment and that this action unjustly rendered him vulnerable for selection for a Department of the Army (DA) imposed bar to reenlistment under the Qualitative Management Program (QMP).  He submits the enclosed electronic mail (e-mail) note from a previous supervisor, a retired colonel, supporting his application to this Board.  

EVIDENCE OF RECORD:  The applicant's military records show:

He entered the Regular Army in August of 1982 and has served on continuous active duty since that date.  He is currently assigned to the 497th Transportation Company at Fort Lewis, Washington and holds the rank of master sergeant/E-8 (MSG).  

In April 1998, while assigned to Headquarters Support Troop, United States Army Garrison Aberdeen Proving Ground (APG), APG, Maryland, two 
court-martial charges for violations of Article 107 and Article 121 of the UCMJ, were preferred against the applicant.  

Charge I contained three specifications; the first for making a false official statement on 8 November 1997, and the second and third for signing an official document with the intent to deceive; the first offense on 23 April 1997 and the second on 21 May 1997.  Charge II was for stealing U.S. currency in the amount of $1493.71, between 23 April and 20 June 1997.  

The summary court-martial was held on 29 and 30 April 1998, and the applicant was adjudged guilty of the first specification of charge I, which was making a false statement with the intent to deceive on 8 November 1997.  His sentence punished him with a forfeiture of $840.00.  The record filing determination made in conjunction with the conclusion of the applicant’s summary court-martial was that the proceedings be filed in the P-Fiche portion of the applicant’s OMPF.  

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; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

Paragraph 3-2 of the regulation contains guidance on filing unfavorable information in the OMPF.  It, in effect, establishes referral procedure for unfavorable information and indicates that this information will not be filed in an OMPF unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement. 

Paragraph 3-3, however, contains filing instructions for information exempt from the referral procedures outlined in paragraph 3-2.  It states, in pertinent part, that the following information may be filed in the performance portion of the OMPF without further referral to the recipient:  records of courts-martial, court-martial orders, and records of nonjudicial punishment under the UCMJ, Article 15.

Paragraph 7-1 (removal of unfavorable information from the OMPF) establishes DA Suitability Evaluation Board (DASEB) as the agency for acting on appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 (appeals for removal of OMPF entries) contains the policies and procedures for appeal actions.  It states, in pertinent part, that 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. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

The evidence of record contains no evidence that the applicant exhausted his administrative remedies by appealing the filing of the summary court-martial proceedings in the OMPF to the DA Suitability Evaluation Board (DASEB).  However in connection with the processing of this case, and in lieu of the administrative remedy provisions of the regulation, an advisory opinion was requested and received from the DASEB.  The enclosed decision summary contains their findings and conclusions in this case. 

The DSASEB review begins with the premise that there is a presumption that documents in the OMPF are presumed to be administratively correct pursuant to an objective decision of competent authority.  They also establish that transferring documents to the R-Fiche is possible if it can be shown that the intended purpose has been served and that transfer is in the best interest of the Army.  By regulation, the burden of proof rests with the applicant to provide substantive evidence that these conditions have been met.  

In this case, the DASEB found that the applicant had failed to meet this burden of proof required by regulation.  His only real claim was that he was found guilty but not punished.  This contention was not supported by the evidence or record and in fact, the record clearly shows that he was sentenced to forfeit $840.00, which constitutes punishment.  

The DASEB also considered the unsigned e-mail note from a former supervisor, which speaks very highly of the applicant, but they determined this note provided no insight or arguments as to why the court-martial proceedings should be transferred to the R-Fiche.  They commented that lacking the strong support of the chain of command and the convening authority, there is no basis for supporting the action.  Further, their decisions in similar cases have been consistent in denying the transfer of recent disciplinary actions on senior NCO’s found guilty in a court of law for a serious integrity violation. 

The DASEB’s final conclusions and findings were that they were not convinced that the summary court-martial filing had served its purpose and that the applicant had failed to adequately demonstrate that he has learned his lesson.  The DASEB did recognize his one strong evaluation report received since his conviction, but based on how recent the court-martial conviction was and given the applicant’s  rank at the time, they found these factors insufficient to support approval of the action as being in the best interest of the Army.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  After carefully reviewing the evidence of record and the independent evidence submitted by the applicant, the Board determined that the filing of the summary court-martial proceedings in the performance portion of the applicant’s OMPF was accomplished in accordance with applicable regulations.  

2.  Further, the Board concurs with the conclusions and findings of the DASEB, which indicate that the applicant has failed to meet the regulatory burden of proof necessary to support transferring the summary court-martial proceedings to the restricted portion of his OMPF.  

3.  The Board noted and considered the applicant’s contention that he was 
court-martialed with no punishment.  However, in the opinion of the Board, this claim lacked merit.  The record shows his conviction resulted in his being sentenced to forfeit $840.00, which is clearly a form of punishment.  Therefore, because his basic premise for application was not valid, the Board found that the transfer of the summary court-martial proceedings to the restricted portion of his OMPF is not warranted.

4.  In addition, the Board noted the strong support provided in the statement of the applicant’s former supervisor and the recent positive evaluations of his service.  However, in the opinion of the Board, these factors do not provide a sufficient basis for providing the requested relief. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ja ___  ___ewl __  ___vbc __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037946	
SUFFIX		
RECON		
DATE BOARDED	2000/06/20	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  30	105.0000	
2.		
3.		
4.		
5.		
6.