Appeals to Remove or Transfer Unfavorable Information in Military Records

By Kelsey Burns, Fort Bliss Legal Assistance Office  

The Department of the Army Suitability Evaluation Board is the decision authority that makes recommendations for the removal, alteration, or transfer of unfavorable information from the performance file to the restricted file of a Soldier’s Army Military Human Resources Record. Chapter 7 of AR 600-37 details the regulations for appealing unfavorable information.

Unfavorable information is considered any credible derogatory information that may reflect on a Soldier’s character, integrity, trustworthiness, or reliability and includes letters of reprimand and Article 15 punishment under the Uniform Code of Military Justice. Removal of an Article 15 punishment can only be considered by the Army Board for Correction of Military Records. The most often attempted to be removed unfavorable information is a General Officer Memorandum of Reprimand.

Those eligible to appeal unfavorable information include Soldiers in the Regular Army, the Army National Guard, and Army Reservists in the grade of E-6 and above. Appeals are to be directed to the DASEB. The DASEB will consider appeals from Soldiers in grades below E-6 only as an exception to the policy.

When submitting an appeal for removal of unfavorable information from AMHRR, there is no time restriction. Additionally, when submitting an appeal, one must provide clear and convincing evidence to support an assertion that the unfavorable information is either untrue or unjust in whole or in part. The evidence submitted in appeal can include documents such as a subsequent official investigation showing the initial investigation was untrue or unjust, decisions that are made by an authority above the imposing authority overturning the basis for adverse documents, notarized witness statements, historical records, official documents, and/or legal opinions. This is not an exhaustive list of options of evidence that may be submitted for appeal.

It is important to note is that the DASEB will not consider appeals that merely allege an injustice or error without supporting evidence or a compelling argument. This means that matters submitted must demonstrate a compelling argument that provides clear and convincing evidence that the unfavorable information is untrue or unjust in whole or part. The DASEB is the final decision authority for appeals removing unfavorable information from a Soldier’s AMHRR.

A transfer of unfavorable information is a request to move the information from the Soldier’s performance folder to their restricted file. The performance folder contains information for officials and selection boards to use in evaluating Soldiers. With few exceptions, Army selection boards and career managers are usually not able to consider or review information in the restricted file. Only letters of reprimand, admonition, or censure may be transferred to the restricted file. To be eligible to receive a transfer of the document to the restricted file, the Soldier must have received at least one evaluation that is other than academic since the imposition of the “bad paperwork.” The Soldier must provide substantial evidence that the intended purpose of the document has been served in support of a transfer of any official memoranda of reprimand, admonition, censure, or records of proceeding pursuant to Article 15, UCMJ, from the performance file to the restricted file of the recipient’s AMHRR.

To transfer the unfavorable information, it is necessary to indicate how this would be in the Army's best interest, which would warrant the transfer of the information to the Soldier’s restricted file of the AMHRR. This evidence could be: statements of support from the imposing authority, the Soldier’s current chain of command, the Soldier’s chain of command at the time of imposition, and/or other memoranda of support; subsequent evaluation reports (other than academic); notarized witness statements; official documents; court documents; statements of remorse; documents demonstrating rehabilitation; other documents showing the intended purpose of the document has been served; and legal documents. Again, this is not an exhaustive list. Similar to standard used in evaluating an appeal to remove a document entirely, the DASEB will not consider requests for transfer to the restricted file without supporting evidence. If an appeal is denied by the DASEB, a copy of the memorandum of notification of denial will be placed in the commendatory and disciplinary portion of the performance record. The appeal itself and the record of the proceedings will be placed in the restricted portion of the AMHRR.

If you have any additional questions on appealing unfavorable information, please schedule an appointment to speak with an attorney at Fort Bliss Legal Assistance Office by either calling (915) 568-7141 during office hours or emailing anytime.