PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           18 January 2001                  
	DOCKET NUMBER:   AR2000050461

	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	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Melvin H. Meyer		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 his records be corrected by the removal of a Special Court-Martial Order (SPCMO) and that his records be reevaluated for promotion.

3.  The applicant states that there is an SPCMO in the restricted portion of his personnel file.  The SPCMO incorrectly states that he elected to take an Army Regulation 635-200 (Enlisted Personnel) chapter 10 discharge in lieu of trial by court-martial.  He implies that the presence of the SPCMO in his records is preventing his selection for drill sergeant duty and may have caused his nonselection to sergeant first class (SFC).

4.  In support of his request, he has provided a memorandum signed by the Commanding General of the 3rd Infantry Division, dated 3 October 1995, stating that the charges and specifications in the case against the applicant were withdrawn and dismissed without prejudice.  The applicant provides a memorandum from the 1st Infantry Division, Office of the Staff Judge Advocate, in which the writer states that on 23 October 2000 she was tasked to research whether any action under the Uniform Code of Military Justice (UCMJ) had been taken against the applicant.  She found no records of any such action against the applicant.  Significantly, she found no record of trial, a document that would have been prepared and maintained in her own office.  The applicant also provided a copy of a sworn statement from his trial counsel who stated that the Government decided to withdraw all charges against the applicant and indicating that the SPCMO should not have been prepared.

5.  The applicant’s military records show that he enlisted in the Regular Army on 18 October 1990.  He was trained as a 12B (Combat Engineer), achieved the rank of Staff Sergeant on 1 May 1997, and is currently on active duty.

6.  The restricted portion of the applicant’s record contains a copy of 1st Infantry Division, SPCMO Number 6.  The SPCMO indicates that on 3 October 1995 the convening authority approved the applicant’s request for discharge under the provision of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and dismissed the charges without prejudice.

7.  The applicant was considered and not selected by the May 2000, SFC Class Selection Board.

8.  The Deputy Chief of Staff for Personnel Memorandum of Instruction for the Current Year 2000 Selection Board and a prior memorandum dated 21 May 1999 provided instructions regarding the release of information filed in the restricted portion of military records to selection boards.  Selection boards are only provided with the performance portion of military records of eligible noncommissioned officers.  If the board president determines that information contained in the restricted portion is crucial to the selection process he/she will have the Department of the Army Secretariat make a written request to the Director of Military Personnel Management (DMPM).  If the DMPM determines the information is relevant she/he will inform the board president through the Department of the Army Secretariat, who will in turn submit the information to the appropriate panel.  While not contained in the instructions the standard practice is that if the written request for the restricted portion of military records is approved a copy of the approved request is placed on the restricted portion of the concerned noncommissioned officer’s record.

CONCLUSIONS:

1.  The evidence submitted supports the applicant’s contention that he was not court-martialed or discharged under the provision AR 635-200, chapter 10 and that the SPCMO was erroneously prepared and filed in his record.  The Board concludes that the placement of the SPCMO in the record is an injustice and should therefore be removed. 

2.  The applicant’s record and the evidence he submitted does not support his implied contention that the presence of the SPCMO in his restricted personnel record was viewed by the FY 2000 SFC Selection Board and contributed to his nonselction.  Selection boards are not routinely provided the restricted portion of a soldier’s record.  There is no evidence that the FY 2000 SFC Selection Board requested or was granted permission by the DMPM to review the applicant’s restricted record.  Therefore, the Board must deny his request for promotion reconsideration.

3.  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 the Headquarters, 1st Infantry Division, SPCMO Number 6 from the restricted portion of the applicant’s military personnel file.

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

BOARD VOTE:  

___jns___  ____jtm_  ____mhm  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________John N. Slone____
		        CHAIRPERSON

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010118	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 131.01		
2.		
3.		
4.		
5.		
6.