SAMR-RB 2 August 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20150018524 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 13 June 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by transferring all documents pertaining to a Civil Conviction Waiver to the restricted folder of his AMHRR/OMPF. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 4 December 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20150018524 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ____x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20150018524 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20150018524 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, removal of information related to a civil conviction waiver from all Headquarters, Department of the Army (HQDA), records and databases. 2. The applicant states he was arrested in 1998. Following his arrest, the charges were lowered to a violation and he paid a fine of less than $250.00. In the meantime, Army officials determined he needed a criminal conviction waiver (CCW). He recently had the charge and arrest record expunged and they are no longer on his record or in the Oregon Law Enforcement Data System. 3. The applicant provides copies of a Request for CCW, dated 2 March 2015, and an Order Setting Aside Conviction and Records of Arrest, dated 5 May 2015. CONSIDERATION OF EVIDENCE: 1. The applicant was born on XX April 1978. He enlisted in the Army National Guard (ARNG) of the United States on 14 November 2003 for a period of 8 years and in the Oregon ARNG for a period of 6 years. 2. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was honorably discharged from the Oregon ARNG and as a Reserve of the Army on 13 August 2005 to accept appointment as a commissioned officer. He completed 1 year and 9 months of net inactive service during this period. 3. On 14 August 2005, he was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant. [UAu1][UAu2]He progressed through the ranks and was promoted to major/pay grade O-4 on 19 April 2016. 4. A review of the applicant's Army Military Human Resource Record (AMHRR) and Official Military Personnel File (OMPF) maintained in the interactive Personnel Electronic Records Management System (iPERMS) shows in the: a. Performance (Evaluation) folder, eight documents titled "HQDA Memorandum For Record" that include four that pertain to a CCW, as follows: * ORARNG, Headquarters, 2nd Battalion, 218th Field Artillery, Portland, OR, memorandum, dated 8 February 2004, subject: Request for Moral Waiver (for Driving Under the Influence of Intoxicants (DUI) in Salem, OR, on 20 April 2001; it shows a State-approved diversion program was completed by the applicant in December 2001 with expungement of the misdemeanor conviction) * ORARNG, Headquarters, 41st Infantry Brigade, Portland, OR, memorandum, dated 9 May 2004, subject: Moral Waiver for Commissioning (for a DUI charge; all requirements were completed) * Oregon Military Department, Joint Force Headquarters, Oregon National Guard, Deputy Chief of Staff for Personnel, Salem, OR, memorandum, dated 23 February 2005, subject: Request for Moral Waiver * NGB, Arlington, VA, memorandum, dated * 10 March 2005, subject: Request for Conviction Waiver, which granted the applicant a waiver to permit his appointment as a commissioned officer b. Service (Service) folder, three documents titled "Approved Waiver" that include two that pertain to a CCW, as follows: * NGB, Arlington, VA, memorandum, dated 10 March 2005, subject: Request for Conviction Waiver, that granted the applicant a waiver to permit his appointment as a commissioned officer (two enclosures) – * Oregon Military Department, Joint Force Headquarters, Oregon National Guard, Deputy Chief of Staff for Personnel, Salem, OR, memorandum, dated 23 February 2005, subject: Request for Moral Waiver * ORARNG, Headquarters, 41st Infantry Brigade, Portland, OR, memorandum, dated 9 May 2004, subject: Moral Waiver for Commissioning (for a DUI charge; all requirements were completed by the applicant) * NGB, Arlington, VA, memorandum, dated 2 March 2015, subject: Request for CCW, that granted the applicant a waiver for the following convictions – * Furnishing Alcohol to Person under 21 that occurred in Corvallis, OR, on 21 November 1998 * Minor in Possession [of Alcohol] that occurred in Corvallis, OR, on 21 November 1998 * DUI that occurred in Corvallis, OR, in 2001 (approved waiver for appointment in 2005) * Medical (Health) folder, four documents titled "Administrative/ Miscellaneous Documents Deemed Appropriate to Retain" that pertain to the topic under review, as follows – * Columbia Evaluation, Salem, OR, Notice of Treatment Completion, entered 7 May 2002 (for compliance with the Order of the Court for successful completion of his treatment plan) * Circuit Court of the State of Oregon for the County of Marion, Case Number: 01C45867, Order Certifying Completion and Dismissing Citation, dated 9 February 2004, that dismissed the DUI citation * Change Point, Portland OR, Monthly Client Progress Report, dated 24 April 2002, that shows his satisfactory progress during March 2002 (two enclosures) – * Diversion Checklist, dated 3 May 2002, that shows the treatment program was completed on 3 May 2002 * Tuality Healthcare, Hillsboro, OR, letter, dated 25 May 2004, that shows a medical doctor evaluated the applicant and found no indication of acute or chronic alcohol abuse * Letter "To Whom It May Concern" from the applicant, dated 25 May 2004, requesting documentation pertaining to a case dating back to 20 April 2001 (one enclosure) – * Marion County Circuit Court, Receipt # 000684314, dated 27 May 2004, for copies of documents and related fees 5. In support of his application the applicant provided a copy of a Circuit Court of the State of Oregon for the County of Benton, Case Number: CM9821733, Order Setting Aside Conviction and Records of Arrest, dated 5 May 2015, that shows: a. The applicant was arrested and convicted, as follows: * Original Arrest/Citation Date: 20 November 1998 * Original Charge: Furnishing Alcohol to a Person Under 21 Years of Age and Minor in Possession of Alcohol * Arresting Agency: Benton County Sheriff or Corvallis Police Department * Date of Conviction: 14 April 1999 * Conviction Charge: Furnishing Alcohol to a Person Under 21 Years of Age and Minor in Possession of Alcohol b. Positive identification of the applicant was established. Additionally, the circumstances and behavior of the applicant since the date of conviction were found to warrant setting aside records of the convictions and arrest. c. The court ordered, adjudged, and decreed that the applicant's (foregoing) convictions and arrest be set aside for all purposes and the applicant shall be deemed not to have been previously convicted or arrested. d. The court also ordered a certified copy of the Order be forwarded to all law enforcement agencies mentioned in the Court's file, including the Federal Bureau of Investigation, Oregon State Police, Oregon State Corrections Division, and Arresting Agency. The court further ordered that, thereafter, the record of convictions and arrest shall be sealed together with all other official records in the case, including investigation reports of the involved law enforcement agencies concerning the criminal episode. REFERENCES: 1. Army Regulation 600-8-104 (AMHRR Management) serves as the authority for filing documents in the AMHRR and OMPF. Only those documents listed in table B-1 (Authorized Documents) are to be filed in the AMHRR/OMPF. a. The Authorized Documents Table provides guidance for filing documents in the AMHRR/OMPF. It shows documents from court agencies (and supporting documents) concerning waivable offenses will be filed in the Service folder with the accessions contract. It also shows documents pertaining to a medical waiver will be filed in the Health folder. b. The restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this folder is controlled. It may not be released without written approval from the Commander, U.S. Army Human Resources Command (HRC), or the Department of the Army selection board proponent. Documents in the restricted folder of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the U.S. Army. 2. AR 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensures that the best interests 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. DISCUSSION: 1. The applicant contends that information related to a CCW for an arrest and charges that occurred on 20 November 1998 should be removed from all HQDA records and databases because the charges and arrest record were expunged. 2. The evidence of record shows the applicant was charged with furnishing alcohol to a person under 21 years of age on 20 November 1998 and also with minor in possession of alcohol on 20 November 1998 (he was 20 years of age). a. He was convicted of the offenses on 14 April 1999. b. On 5 May 2015, the Circuit Court of the State of Oregon for the County of Benton ordered the convictions and arrest be set aside for all purposes and that the applicant be deemed not to have been previously convicted or arrested. 3. The evidence of record also shows that he was charged with DUI on 20 April 2001. a. He successfully completed a court-ordered, state-approved diversion treatment program on 3 May 2002. b. The ORARNG, Headquarters, 2nd Battalion, 218th Field Artillery, Portland, OR, memorandum, dated 8 February 2004, subject: Request for Moral Waiver shows the charge of DUI on 20 April 2001 was expunged. c. On 9 February 2004, the Circuit Court of the State of Oregon for the County of Marion dismissed the DUI citation. 4. The records filed in the Performance (Evaluation) folder titled "HQDA Memorandum For Record" that pertain to a moral waiver for the applicant's commissioning relate to the 20 April 2001 DUI. The documents offer historical context relating to approval of the applicant's appointment as a commissioned officer. The evidence of record shows the correct filing for the documents is in the Service folder with the accessions contract. 5. The records filed in the Service (Service) folder titled "Approved Waiver" that pertain to a moral waiver for the applicant's commissioning also relate to the 20 April 2001 DUI. It is noted that the NGB memorandum, dated 2 March 2015, lists the two 1998 charges as well as the 2001 DUI charge. The documents offer historical context relating to approval of the applicant's appointment as a commissioned officer. The evidence of record shows the correct filing of the documents is in the Service folder with the accessions contract. 6. The records filed in the Medical (Health) folder "Administrative/Miscellaneous Documents Deemed Appropriate to Retain" pertain to the DUI charge and the applicant's treatment plan. a. The documents that address his treatment plan (i.e., Change Point, Monthly Client Progress Report, dated 24 June 2002, with two enclosures) provide medical information pertaining to the applicant and are properly filed. b. The documents that advise the court of his successful completion of the treatment plan (dated 7 May 2002), the court order dismissing the DUI charge (dated 9 February 2004), and his request for court documents (dated 25 May 2004) are not medical records. The evidence of record shows the correct filing for the documents is in the Service (Service) folder with the accessions contract. 7. For historical purposes, the Army has an interest in maintaining the integrity of its records. The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created. In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be removed from the applicant's military service records. While it is understandable the applicant desires to now remove records that refer to two charges (on 20 November 1998) from his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army's records at this late date. It is noted that with his request to the Board, the 20 November 1998 charges are conflated with the 20 April 2001 DUI charge. 8. The applicant's request was carefully considered. He was appointed as a commissioned officer of the Army on 14 August 2005. He was promoted to major (O-4) on 19 April 2016. a. The records under review relate to matters that occurred prior to the applicant's entry into military service as a commissioned officer. b. The documents under review offer historical context relating to approval of the applicant's appointment as a commissioned officer. However, they are not correctly filed with the accessions contract. c. The restricted folder of the OMPF is used for historical data that is normally improper for viewing by HQDA selection boards. d. Based on the entirety of the evidence of record and as a matter of justice, it would appear appropriate at this time, to transfer the documents identified in paragraphs 4, 5, and 6b (above) to the restricted folder of his AMHRR/OMPF. These documents consider unfavorable information appear to have fulfilled their intended purpose as the applicant received a moral waiver and was accordingly commissioned. //NOTHING FOLLOWS// [UAu1]CE-9 Documents referenced in case not attached (nor is an ORB available to cross reference this data). JMR [UAu2R1] ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018524 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018524 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2