IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090009895 


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 removal of the absent without leave (AWOL)/deserter status from his records.

2.  The applicant states that the presence of the AWOL/deserter documents in his service record is unjust because it poses a threat of damaging his career as a commissioned officer.  He adds that this incident happened 11 years ago when he was a junior enlisted man and that his actions were event-driven (parental illness) as he had no intention of deserting the Army.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Service), dated 12 December 1997, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Navy and the U.S. Army Reserve (USAR), the applicant's records show he enlisted in the Regular Army (RA) for a period of 4 years on 22 May 1997 and was subsequently assigned to the 2nd Battalion, 80th Field Artillery, U.S. Army Field Artillery Center, Fort Sill, OK, for completion of training.   



2.  On 18 August 1997, the applicant departed his training unit in an AWOL status.  His immediate commander subsequently initiated a DA Form 4187 (Personnel Action) to report his duty status as AWOL.

3.  On 19 August 1997, the applicant's immediate commander initiated DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) alerting the Law Enforcement Command, Fort Sill, OK, of the applicant's absence.

4.  On 28 August 1997, by letter, the applicant's immediate commander notified the applicant's next of kin that he had been in an AWOL status since 18 August 1997 and solicited help in urging the applicant to immediately return to military control.

5.  On 17 September, the applicant was dropped from the Army rolls (DFR). Accordingly, a DA Form 4187 was initiated to report his new duty status.

6.  On 25 September 1997, a DD Form 616 (Report of Return of Absentee) was initiated by the 97th Military Police Company, Fort McCoy, WI, to terminate the applicant's absentee status as he had surrendered to military authorities at Fort McCoy, WI.  He was subsequently transferred to Fort Knox, KY.

7.  On 30 September 1997, court-martial charges were recorded on a DD Form 458 (Charge Sheet) and preferred against the applicant for one specification of being AWOL during the period on or about 18 August 1997 through on or about 25 September 1997.

8.  On 30 September 1997, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.

9.  On 20 November 1997, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.  On 13 December 1997, the applicant was discharged accordingly.  The

DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with an uncharacterized character of service. This form further confirms the applicant had completed 5 months and 13 days of creditable active military service and had 38 days of lost time due to AWOL.

10.  The applicant’s complete separation packet to include DA Forms 4187, DD Form 553, letter to the next of kin, DD Form 616, DD Form 458, and other allied documents are filed on the applicant’s Official Military Personnel File (OMPF). 

11.  The applicant’s records further show that from 1998 to 2006, the applicant enlisted in and/or was discharged from various components in the armed forces including the Michigan Army National Guard (MIARNG) and U.S. Marine Corps.  Additionally, on 15 August 2006, he was appointed as a second lieutenant in the USAR and executed an oath of office on the same date.  He was subsequently promoted to first lieutenant on 15 August 2007.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  

13.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF.  The OMPF consists of three sections: performance, service, and restricted.  Table 2-1 (Composition of the OMPF) of this Army regulation states that the DD Forms 553 and 616 are filed on the performance section of the OMPF and that the DA Form 4187 that shows time lost to be made good to include AWOL or DFR duty status changes, the DD Form 214, and the DD Form 458 are filed on the service section with the DD Form 458 filed in the service section (as part of the separation for the good of the service).  Additionally, case files for approved separations to include elimination board proceedings, administrative discharge actions, resignations instead of board action, or separations for the good of the service are filed in the service section.  

14.  Paragraph 2-7 of Army Regulation 600-8-104 states, in pertinent part, that as an exception enlisted performance, commendatory, and disciplinary data, except for awards and decorations, will be filmed on a "special" R fiche for enlisted Soldiers changing to officer status.


15.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF.  It states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF.  It further stipulates that appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.  Where the OMPF is electronic, the restricted section and the performance section mean the restricted section and the performance section of the interactive Personnel Electronic Management System (iPERMS).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

2.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and may not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

3.  The applicant’s current appointment as a commissioned officer is noted.  However, this appointment does not eliminate or negate the fact that he was discharged under the provisions of chapter 10 of Army Regulation 635-200 due to lost time.  Nevertheless, as an exception, enlisted performance, commendatory, and disciplinary data, except for awards and decorations, are filmed on a "special" R fiche for enlisted Soldiers changing to officer status.  It does not appear that this "special" R fiche has been created in this case.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____x___  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by moving the applicant's enlisted performance service and disciplinary documents, including his separation packet and allied documents, into a "special" R fiche. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the AWOL/deserter status from his records.




      _______ _   _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.

ABCMR Record of Proceedings (cont)                                         AR20090009895



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009895



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1