PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 February 2001                   
	DOCKET NUMBER:   AR2000041985

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		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, in effect, that all documents relating to his four records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) and his court-martial be removed from the performance portion of his Official Military Personnel File (OMPF) and moved to his restricted fiche.

3.  The applicant states that his current performance has been honorable as reflected in his records.

4.  The applicant’s military records show that he enlisted in the Regular Army on 23 August 1971.

5.  On 13 September 1971, the applicant accepted NJP under Article 15, UCMJ for being absent without leave from 11 – 13 September 1971.  On 18 August 1972, he accepted NJP under Article 15, UCMJ for disobeying a lawful order and being disrespectful in language towards his superior noncommissioned officer.  On 7 September 1972, he accepted NJP under Article 15, UCMJ for disobeying a lawful order and behaving with disrespect towards his superior commissioned officer.

6.  On 18 June 1973, the applicant was convicted by a special court-martial of  behaving with disrespect towards his superior noncommissioned officer, disobeying a lawful order, and striking his superior commissioned officer.  His approved sentence was to be reduced to pay grade E-1, to be confined at hard labor for 6 months, to forfeit $204.00 pay for 6 months, and to be discharged with a bad conduct discharge.  The bad conduct discharge was suspended for 6 months.  

7.  This court-martial was recorded on an Insert Sheet to DA Form 20, Record of Court-Martial Conviction, DA Form 20B and is currently filed on the general administrative data section of his performance fiche, OMPF with the Enlisted Qualification Record, DA Form 20, from his Regular Army service.  This DA Form 20 contains the entries “not recommended for further service” and “bar to reenlistment reviewed; not recommended for removal 740731” in item 42 and the entries “11 Sep 70 (to) 12 Sep 70 2 (days) AWOL” and “730618 (to) 731025 130 (days) Imprmt.”

8.  On 16 September 1974, the applicant accepted NJP under Article 15, UCMJ for possessing marijuana.

9.  On 10 December 1974, the applicant was honorably released from active duty upon his expiration term of service in pay grade E-1.  On 22 August 1977, he was honorably discharged from the U. S. Army Reserve (USAR).

10.  On 17 October 1979, the applicant enlisted in the New York Army National Guard (ARNG) in pay grade E-1.  He was honorably discharged on 30 November 1979 and enlisted in the Oklahoma ARNG on 1 December 1979.  His noncommissioned officer evaluation reports show he was promoted to Sergeant First Class, E-7 on 1 May 1990.  He was honorably discharged from the Oklahoma ARNG on 25 March 1991.  He enlisted in the USAR on 26 March 1991.  He entered active duty in a active guard/reserve (AGR) status on            11 September 1994.

11. Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest 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.  In pertinent part, it states 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.  Only letters of reprimand, admonition or censure and records of nonjudicial punishment under Article 15, UCMJ may be the subject of an appeal for transfer to the restricted fiche.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 

CONCLUSIONS:

1.  The Board agrees with the applicant that the intended purpose of his Article 15s and court-martial has been served.  Those instances of misconduct occurred during his initial enlistment 25 years ago.  He separated from active duty in pay grade E-1.  Five years later he enlisted in Army National Guard in pay grade E-1 and successfully earned steady promotions in the Reserve components until now he is a Sergeant First Class back on active duty in an AGR status.

2.  The Board recognizes the applicant’s good service subsequent to his separation from active duty in 1974 and concludes that the impediment that these documents may prove to any further promotion should no longer be so prominent in his records.

3.  The Board concludes that it would not be appropriate to make any changes to the DA Form 20 on file in the applicant’s OMPF.  Both the fact that he separated with a bar to reenlistment and the fact that he had 132 days of lost time are elsewhere noted on his Report of Separation from Active Duty, DD Form 214, and his Correction to DD Form 214, Report of Separation from Active Duty,     DD Form 215. 

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing all documents related to the applicant’s four Article 15s and court-martial, to include the DA Form 20B, from the performance fiche of his OMPF and transferring them 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:  

__lls___  __jea___  __bjl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000041985	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.	134.00	
3.		
4.		
5.		
6.