MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            23 February 2000
	DOCKET NUMBER:   AR1999030861

	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.

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 a 1988 UCMJ action and two documents associated with release of information from the restricted portion (R-fiche) of the Official Military Personnel File (OMPF) be expunged from his file.

APPLICANT STATES:  The UCMJ action was received when he first entered the Army and while he admits responsibility he would like the “opportunity to redeem the situation.”  He also contends that the two documents on his R-fiche pertaining to release of information from his files as a result of a pending court-martial should also be expunged.  He state that he was found not guilty of the court-martial charges and retention of those documents in his file could result in “negative influence” should he elect to apply for warrant officer or schools which require a copy of his OMPF.  In support of his request he provides copies of the documents he wishes to have expunged as well as a copy of the court-martial order indicating he was found not guilty of attempted murder and carrying a concealed weapon.

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

The applicant entered active duty as an enlisted soldier on 27 January 1988 and has served continuously since that date.  He was promoted to pay grade E-6 in June 1993.

In February 1988, while undergoing basic training at Fort Dix, New Jersey, the applicant was punished under Article 15 of the UCMJ for “urinating in public while standing in the chow line.”  His punishment included forfeiture, extra duty and restriction.  The UCMJ action was directed for filing in the restricted portion of the applicant’s OMPF.

In August 1996 a trial counsel from the Office of the Staff Judge Advocate at Fort George G. Meade, Maryland requested a copy of “all adverse information in the performance and restricted fiche” in the applicant’s OMPF.  The requesting officer noted the applicant was pending court-martial.  In September 1996 the deputy commander of the enlisted Records and Evaluation Center provided the documents requested.  Both the original requesting document and the document providing the requested records are filed in the restricted portion of the applicant’s OMPF.

Army Regulation 600-8-104, which establishes the policies and procedures for the creation and maintenance of the OMPF states, in pertinent part, that the restricted fiche is the OMPF section for historical data that may normally be improper for viewing by selection boards or career managers.  The restricted 

fiche ensures that an unbroken, historical record of a member’s service, conduct, duty performance, evaluation periods, and corrections to other parts of the OMPF is maintained.  It is intended to protect the interest of the member and the Army.  The regulation specifically states, however, that all or part of the restricted fiche may be given to requesters who, by the authority of the Commanding General, PERSCOM, the Commander, ARPERCEN or the Commander, ARNG Personnel Center, have a fully justified need for the information.  OMPF custodians are delegated the authority to release authenticated copies of the restricted fiche Article 15 for use in court-martial proceedings.  The document requesting release of the restricted fiche and the document approving release of the information will be filed 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, it is concluded:

1.  The evidence confirms that the applicant’s 1988 UCMJ action and documents associated with release of information contained on his restricted file are filed in accordance with governing regulations with no evidence of any substantive violation of any of the applicant’s rights.

2.  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 the aforementioned requirement.

3.  Although the applicant may perceive that retention of the documents on his restricted fiche might somehow be prejudicial to his career, there is no basis to support that perception.  Rather, retention of the record protects the applicant and the Army’s interest by ensuring that a complete record of the facts are maintained.

4.  The UCMJ action and restricted fiche release documents are properly filed and as such no error or injustice exists.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

5.  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

__RVO__  __EB___  __RJW___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030861	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000223	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.328	110.00	
2.		
3.		
4.		
5.		
6.