MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  13 March 2001
	DOCKET NUMBER:  AR2000049445

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Donald P. Hupman		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:  That his General Court-Martial Order Number 7, dated 22 November 1997, be removed from his Performance Fiche, Disciplinary Data Section, of his Official Military Personnel File (OMPF) and transferred to his Restricted Fiche.

APPLICANT STATES:  That he believes that the General Court-Martial Order
(GCMO) should have been placed on his Restricted Fiche instead of the Disciplinary Data Section of his Performance Fiche.  He also states that his GCMO was placed between the timeframe of November 1999 and May 2000.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 9 November 1983 as a light weapons infantryman.  He continued to serve until he was honorably discharged on 30 September 1992 in order to accept an appointment as a Warrant Officer.  On 1 October 1992 he was appointed as a Reserve Warrant Officer on active duty.  He continued to serve and is presently assigned to the 57th Medical Company (Air Ambulance), Fort Bragg, North Carolina, as a maintenance test pilot.

The applicant’s Performance Fiche, Disciplinary Data Section, of his OMPF contains Headquarters, United States Army South, Fort Clayton, Panama, General Court-Martial Order Number 7, dated 22 November 1997.  This GCMO shows that the applicant was found guilty of unlawfully killing a noncommissioned officer by forcing him to run in excessive heat and was found not guilty for dereliction of duty by failing to do a risk assessment and for failing to lawfully
take disciplinary action against two noncommissioned officers on or about 1 March 1997.  The sentence consisted of a forfeiture of $1000 pay per month
for 6 months and confinement for 6 months.  The sentence was adjudged on 2 August 1997.  The approved sentence reduced confinement to 5 months and 
1 day and the forfeiture to 4 months.

In the processing of this case an advisory opinion was provided by the Department of the Army Suitability Evaluation Board (DASEB).  The DASEB stated that the applicant bases his claim on the assertion that the GCMO that has been filed on his Performance Fiche is in error.  The DASEB established that the applicant was found guilty of unlawfully killing a noncommissioned officer and was sentenced to 5 months in confinement and a forfeiture of pay of $1000 per month for 4 months.  The DASEB also stated that in accordance with Army Regulation 600-8-104, Table 2-1, that court-martial orders would be filed on the Performance Fiche when there is an approved finding of guilty on at least one specification.  Therefore, the DASEB opines that the GCMO is properly filed on the applicant’s Performance Fiche.  The applicant does not contend the accuracy of this document.   The DASEB further stated that there is no provision to remove 

such an order from the applicant’s Performance Fiche.  The DASEB concluded by stating that it is in the best interest of the Army to maintain his GCMO on the Performance Fiche where future personnel managers can use it to determine future professional development of the applicant.  

The applicant was provided a copy of this opinion for possible comment prior to consideration of his case.  The applicant stated that he had paid his debt to society.

Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board,
Army Appeals Board, the Chief of Appeals and Corrections Branch of the Total Army Personnel Command or the Official Military Personnel File custodian when
documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

Table 2 of Army Regulation 600-8-104 pertains to the composition of the OMPF.  It states, in pertinent part, that court-martial orders will be filed on the Performance Fiche when there is an approved finding of guilty on at least one specification.  Also file supplemental actions.  If all approved findings are not guilty, file the above on the Restricted Fiche.

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

1.  The Board notes the applicant’s contention that his GCMO should be removed from his Performance Fiche, Disciplinary Data Section of his OMPF and transferred to his Restricted Fiche.  However, the GCMO was properly imposed 
and was properly filed on the Performance Fiche of his OMPF in accordance with applicable regulations.  

2.  The Board notes that the applicant has failed to provide compelling evidence 
that the GCMO that has been filed on his Performance Fiche was in error.  Therefore, there is no basis to remove the GCMO from his Performance Fiche, Disciplinary Data Section, of his OMPF and transfer to his Restricted Fiche.
3.  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.

4.  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

__jh___  ___jm_____  __dh____  DENY APPLICATION

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

INDEX

CASE ID	AR2000049445	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010313	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	ACTIVE DUTY	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1020		
2.		
3.		
4.		
5.		
6.