ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 March 2021 DOCKET NUMBER: AR20180008782 APPLICANT REQUESTS: reconsideration of his previous request for removal of 23 documents related to an erroneous criminal charge in 2006 from his Official Military Personnel File (OMPF). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * DA Form 4858 (Developmental Counseling Form) * documentation submitted with his previous DD Form 149 * email correspondence to and from the U.S. Army Human Resources Command (HRC) * Person Summary * Commonwealth of Kentucky – Uniform Citation, Order Dismissing, and Expungement Order and Certification Form * letter from the Army Board for Correction of Military Records (ABCMR) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100010050 on 21 October 2010. 2. The applicant states: a. The 23 documents are related to a criminal charge erroneously levied against him in County, in 2006. He did not commit the crime. Accordingly, the Circuit Court of County ordered the charge dismissed with prejudice and expunged from his record. Despite being cleared of any wrongdoing, the existence of the allegation had a substantial negative impact on his military career. For example, he was subject to a suspension of favorable personnel action and a suspension of his secret security clearance. He was denied access to government computers and denied the opportunity to attend required Army training. b. Initially, he submitted the 23 documents in order to counter these adverse personnel actions and he succeeded. The documents are exculpatory in nature and include the court orders dismissing and expunging the charges against him. His submission of the 23 documents resulted in the resolution of all adverse personnel actions in his favor. c. It is clear, based on the prior adverse actions that any reference to the 2006 charge in his OMPF, although exculpatory, will continue to unfairly prejudice him. Future consideration of the documents he submitted on his own behalf, 9 years ago, in order to clear his name, constitutes an injustice. Accordingly, the documents are unjust in nature and should be removed from his file. 3. Review of the applicant’s military record shows: a. He was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, on 25 July 1995. b. The applicant provides the following: * DA Form 4858, dated 13 August 2006, showing he received counseling on expectations * email correspondence to and from HRC, dated between 28 September 2006 and 26 March 2008, pertaining to his obtaining a major position in his area of concentration, attending the Captains Career Course, and being denied promotion to major due to not attending school * Person Summary, where he highlighted that the “incident” was reported to his security clearance on 30 June 2006 * Commonwealth of Uniform Citation showing he was arrested on 4 November 2007 on the charge of distribution of matter portraying sexual performance by a minor, first offense * email correspondence, dated 17 October 2006, wherein his battalion was advised to cancel his Aviation School * email correspondence, dated 18 June 2007, denying his access to government computers * Commonwealth of Order Dismissing, dated 25 March 2008, wherein the court dismissed the charge against him with prejudice * Commonwealth of Expungement Order and Certification Form, dated 14 May 2008, granting the motion to dismiss with prejudice the charge against him * DD Form 149, dated 5 August 2009, wherein he requested removal of the criminal investigation and charges levied against him from his OMPF and promotion consideration to major c. On 23 December 2009, in response to his DD Form 149, dated 5 August 2009, requesting expungement of a titling action from the Defense Central Investigation Index record and promotion to the rank of major, the ABCMR advised him of the following: * he had not exhausted all administrative remedies to correct the alleged error or injustice * he should write the Criminal Investigation Command (CID) to address the titling issue; once CID rendered a decision, he could reapply to the ABCMR along with their decision and supporting documentation * his application was being returned without prejudice and without action taken by the Board d. The 2009 application with supporting documents and administrative closure letter are filed in the restricted portion of the applicant’s OMPF. e. He was promoted to Major on 2 June 2010. f. Following the administrative closure, in February 2010, through counsel, the applicant requested adjudication of his application on the merits. Counsel stated the applicant was not requesting expungement of a non-existent DCII record or to be untitled from a CID investigation. The investigation and subsequent charges were handled by civilian authorities – not CID. As such, there is no CID record from which to untitle the applicant. g. On 21 October 2010, the ABCMR, after consideration of all evidence submitted by the applicant and his counsel, determined: * his OMPF was void of any reference to a criminal investigation, incident report, or charges * he was not entitled to the removal of the references to the criminal investigation and charges that were levied against him from security information files or restoration of his security credentials to the state prior to the incident * it would be appropriate to refer him to a Special Selection Board for promotion consideration to major under the 2009 selection criteria; if selected, he be promoted if otherwise eligible; and if not, selected, he be notified of his non- selection * the Record of Proceedings and all documents related to that appeal be returned to the Board for permanent filing and would not be filed in the restricted portion of his OMPF h. He was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 22 March 2013. He served in Kuwait from 6 May to 10 June 2013. He was honorably released from active duty on 28 June 2013 and was transferred to the USAR Control Group (Reinforcement). i. He was promoted to lieutenant colonel on 10 May 2016. j. On 31 August 2017, he was issued a 20-Year Letter. k. He again entered active duty on 12 May 2018. He was honorably released from active duty on 1 September 2018 and was transferred to a Reserve unit. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed: * 3 months and 20 days of net active service this period * 5 years, 5 months, and 6 days of total prior active service * 20 years, 8 months, and 27 days of total prior inactive service l. He is currently serving in an Active Reserve status. 4. By regulation (AR 600-8-104), states 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. The applicant is requesting removal of a 5 August 2009 ABCMR application with attachments and a 23 December 2009 administrative closure letter from the Chief of ARBA Case Management Division. Although procedurally the addition of the documents was not in error, the Board concluded that the applicant has shown by a preponderance of the evidence the potential negative effect of these documents in his OMPF and thus recommended all documents related to the applicant’s 5 August 2009 application and the 23 December 2009 administrative closure letter be removed from his OMPF. Additionally, the Board recommended the case result from this board also not be placed in the applicant’s OMPF due to the potential negative impact the applicant may face. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by removing the applicant’s 5 August 2009 ABCMR application and the 23 December 2009 administrative closure letter be removed from his OMPF. The Board also recommended the case result from this board should not be placed in the applicant’s OMPF due to the potential negative impact the applicant may face. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. AR 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the Army Military Human Resource Record/Official Military Personnel File (OMPF). The regulation states in: a. Chapter 2 – detained 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. b. ABCMR decision memoranda/letters (to include denials), records of proceedings, and applications (with continuation pages when provided) are filed in the restricted section of the OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008782 6 1