ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 October 2019

	DOCKET NUMBER:  AR20170002009


APPLICANT REQUESTS:  correction of his military records by the immediate 
removal from his official military personnel file (OMPF) the following documents:

*	military police report (fingerprints, photographs, and statements)
*	Army Family Advocacy Program records
*	acknowledgment and correction of the injustice memorandum
*	documentation submitted by the Department of Justice

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Family Advocacy Case Review Committee (CRC) Incident Determination 
memorandum
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, 
United States Code (USC), section 1552(b); however, the Army Board for Correction 
of Military Records (ABCMR) conducted a substantive review of this case and 
determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states while serving in the Regular Army (RA) at Fort Polk, LA, a 
false allegation of adult physical abuse was presumably made by his ex-wife on or 
about 13 January 2015.  

3.  Review of the applicant’s service record shows:

	a.  He enlisted in the RA on 12 June 2012.  

	b.  A Family Advocacy CRC Incident Determination memorandum, dated 
17 March 2015, shows the CRC Chairperson, U.S. Army Medical Department 
Activity, Fort Polk, LA, advised the applicant of the following:

*	the CRC met on 12 March 2015 to review incident 20150093
*	the allegation was adult physical abuse and he was identified as the alleged 
offender
*	the CRC determined the incident did not meet criteria for physical abuse
*	the CRC findings were to be shared between him and his commander

	c.  He was honorably released from active duty on 22 October 2015 and was 
transferred to a Reserve unit.  His DD Form 214 shows he completed 3 years, 
4 months, and 11 days of active service.

	d.  He was enlisted in the Louisiana Army National Guard on 11 August 2015 and 
is currently serving in an Active Reserve status.

	e.  A review of his records located on the integrated Personnel Electronic 
Records Management System and Soldier Management System, located on the 
U.S. Army Human Resources Command Integrated Web Service failed to reveal the 
documentation requested to be removed from his OMPF.

4.  By regulations:

	a.  AR 600-37, completed investigative reports or other unfavorable information 
of which the recipient had prior official knowledge and an adequate chance to refute 
could be filed in the performance portion of the individual’s OMPF.

	b.  AR 600-8-104, once placed in the OMPF, a document is permanent part of 
that file.  The document will not be removed from or moved to another part of the 
OMPF unless directed by certain agencies, to include this

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief 
was not warranted.  The applicant’s contentions were carefully considered.  The 
Board agreed there was probable cause to investigate, and no evidence of a 
mistaken identity.

Titling or indexing on reports does not denote any degree of guilt or innocence.  If 
there is a reason to investigate, the subject of the investigation should be titled.  This 
is a very low standard of proof, requiring only the merest scintilla of evidence far 
below the burdens of proof normally borne by the government in criminal cases 
(beyond a reasonable doubt), in adverse administrative decisions (preponderance of 
evidence), and in searches (probable cause).

The Board determined the evidence of record shows there was credible information 
regarding the applicant's involvement in the alleged offenses.  As a result, he was 
properly titled, and the record should remain through disposition.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


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.

	  
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.

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or 
injustice.  This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the three-year statute of limitations if the ABCMR 
determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 600-37 (Unfavorable Information), in effect at the time, set 
the policies to authorize placement of unfavorable information about Army members 
in the individual’s official personnel files.  The regulation stated in:

	a.  Paragraph 3-3c – the following could be filed in the performance portion of the 
official military personnel file (OMPF) without further referral to the recipient:   

*	completed investigative reports, including criminal investigation reports (or 
authenticated extracts) that had resulted in elimination or disciplinary 
action against the person concerned; when it was not practical to include 
the entire report (or an extract),the investigative report will be referenced
*	other unfavorable information of which the recipient had prior official 
knowledge and an adequate chance to refute

	b.  Paragraph 7-2 – once an official document was properly filed in the OMPF, it 
was presumed to be administratively correct and to have been filed pursuant to an 
objective decision by competent authority.  Thereafter, the burden of proof rest with 
the individual concerned to provide evidence of a clear and convincing nature that 
the document was untrue or unjust, in whole or in part, thereby warranting its 
alteration or removal from the OMPF.  Normally, such appeals would be considered 
only from Soldiers in grades E-6 and above, officers, and warrant officers.  The 
documents could be appealed on the basis of proof that their intended purpose had 
been served and that their transfer would be in the best interest of the Army.  The 
burden of proof rest with the recipient to provide substantial evidence that these 
conditions had been met.

3.  AR 600-8-104 (Army Military Human Resource Records Management) prescribes 
Army policy for the creation, utilization, administration, maintenance, and disposition 
of the Army Military Human Resource Record, including the OMPF.  

	a.  Chapter 2 provides detailed guidance and instructions with regard to the 
initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  
Documents authorized for filing in the OMPF are kept to maintain an unbroken, 
historical record of a Soldier's service, conduct, duty performance, and evaluation 
periods; and corrections to other parts of the OMPF.  It also serves to protect the 
interests of the Soldier and the Army.  Once placed in the OMPF, the document 
becomes a permanent part of that file.  The document will not be removed from or 
moved to another part of the OMPF unless directed by the ABCMR or other 
authorized agency.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170002009

4

1