IN THE CASE OF:
BOARD DATE: 21 January 2010
DOCKET NUMBER: AR20090012390
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, that a DD Form 616 (Report of Return of Absentee), dated 28 January 1997, and a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 13 April 1996, be removed from the performance section of his Official Military Personnel File (OMPF) and transferred to the restricted section of his OMPF.
2. The applicant states, in effect, that he believes these two documents were just misplaced because other documentation pertaining to this incident are located in his restricted section of his OMPF.
3. The applicant provides copies of the DD Forms 616 and 553 in support of his application.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 6 February 1991 and was discharged in lieu of trial by court-martial on 4 April 1997.
3. A DD Form 553, dated 13 April 1996, shows the applicant went absent without leave on 14 March 1996 and was declared a deserter on 13 April 1996.
4. A DD Form 616, dated 28 January 1997, shows the applicant returned to military control (surrendered) on 28 January 1997.
5. A review of the applicants OMPF on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the DD Forms 553 and 616 in the performance section of his OMPF.
6. The applicant subsequently enlisted in the Army National Guard and is currently serving on active duty.
7. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, Department of the Army Suitability Evaluation Board (DASEB), Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, OMPF custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.
8. Table 2 of Army Regulation 600-8-104 states, in pertinent part, that DA Forms 553 and 616 will be filed in the performance section of the OMPF.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were carefully considered. However, the governing regulation states that DD Forms 553 and 616 will be filed in the performance section of the OMPF.
2. There is no evidence that the DD Forms 553 and 616 were improperly prepared. The DD Forms 553 and 616 were properly filed in the performance section of the applicants OMPF. Therefore, there is no basis for granting the applicant's requests.
BOARD VOTE:
________ ________ ________ 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 that 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.
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