BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20100012820 


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 that the following documents be transferred from the performance (P) to the restricted (R) portion of his Official Military Personnel File (OMPF):  DA Forms 4187 (Personal Action), dated 4 and 28 March 2002 and 
17 and 18 March 2003; DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 30 April 2002; DD Form 616 (Report of Return of Absentee); and documents related to him being absent without leave (AWOL) and dropped from the rolls (DFR).  

2.  The applicant states he believes the derogatory information in the P portion of his OMPF has served its purpose and if allowed to stay may hinder his career and future progression as an active duty Solider.  He states the documents are over 6 years old and he completed the terms of his punishment years ago.  

3.  The applicant states he provided the following documents in support of his application:

* DA Form 4187 dated 4 March 2002 (not provided)
* DA Form 4187 dated 28 March 2002 (not provided)
* DD Form 553 dated 30 April 2002
* DD Form 616 dated 17 March 2003
* DA Form 4187 dated 18 March 2003


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he initially enlisted in the Regular Army (RA) on 2 November 2000.  He was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout).

2.  On 27 February 2002, while serving at Fort Hood, Texas, the applicant departed AWOL from his unit.  He was DFR of his organization on 28 March 2002, and he remained away for 1 year and 26 days until returning to military control at Fort Hood on 17 March 2003.  

3.  On 20 December 2003, the applicant was honorably released from active duty (REFRAD), in the rank of private/E-1, at the completion of his required active service.  At the time, he was transferred to the United States Army Reserve (USAR) to complete his military service obligation.  

4.  On 29 June 2005, the applicant was honorably discharged from the USAR, in the rank of private first class/E-3 (PFC/E-3).  

5.  On 30 June 2005, the applicant enlisted in the RA for 3 years, in the rank of PFC.  

6.  The P portion of the applicant's OMPF contains the following documents in the Sections indicated:

	a.  Evaluation –

* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) ending 1 January 2010
* DA Form 1059 (Service School Academic Evaluation Report) dated 
* 22 November 2008

	b.  Education – 

* Certificate of Training (PBUSE) dated 27 July 2007

	c.  Commendation – 

* Army Good Conduct Medal (2nd Award) Orders dated 18 June 2009
* Army Commendation Medal Certificate dated 21 April 2009
* Army Achievement Medal Certificate dated 28 February 2002 


	d.  Disciplinary – 

* DD Form 616 dated 27 March 2003
* DD Form 553 dated 30 April 2002

7.  The Service (S) portion of the applicant's OMPF contains the following documents:

* Staff Sergeant promotion orders dated 18 September 2007
* DA Form 1506 (Statement of Service) dated 7 November 2005
* DA Form 3340-R (Oath of Extension of Enlistment) dated 5 October 2005
* USAR Discharge Orders dated 13 July 2005
* DD Form 4 (Enlistment/Reenlistment Document) dated 30 June 2005
* USAR Transfer Orders dated 18 November 2004
* DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 20 December 2003
* Duty Status Change (DA Form 4187) dated 18 March 2003 DFR to Present for Duty (PDY)
* PDY to DFR duty status change
* DD Form 2366 (Montgomery GI Bill of 1984 (MGIB))

8.  The Military Personnel Records Jacket (MPRJ) portion of the applicant's OMPF contains the following documents;

* NCO Evaluation Report ending 1 January 2010 
* Army Good Conduct Medal (2nd Award) Orders dated 18 June 2009
* Army Commendation Medal Certificate dated 21 April 2009
* DA Form 1059 dated 22 November 2008
* Staff Sergeant promotion orders dated 18 September 2007
* Certificate of Training dated 27 July 2007
* DA Form 1506 dated 7 November 2005
* DA Form 3340-R dated 5 October 2005
* USAR Discharge Orders dated 13 July 2005
* DD Form 4 dated 30 June 2005
* USAR Transfer Orders dated 18 November 2004
* DD Form 214 dated 20 December 2003
* Army Achievement Medal Certificate dated 28 February 2002

9.  The R portion of the applicant's OMPF contains the following documents:

* DD Form 616 dated 27 March 2003
* USAREC Form 85 dated 28 March 2003
* Telephone Conversation Record dated 27 March 2003
* DD Form 458 (Charge Sheet) dated 10 April 2002
* Deserter Processing Checklist dated 18 November 2002 

10.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies for preparing and maintaining Army personnel records.  Chapter 2 contains guidance on the OMPF and paragraph 2-3 contains guidance on the composition of the OMPF.  Table 2-1 outlines the location for filing of documents and forms in the OMPF.  It states 
DD Forms 553 and 616 are filed in the commendatory and disciplinary (CD) sections of the P portion of the OMPF, and DA Forms 4187 documenting time lost to include AWOL or DFR will be filed in the service computation (SC) section of the P portion of the OMPF.  Further, all allied documents to the DA Form 4187 related to AWOL and desertion status of a member will be filed in the R portion of the OMPF. 

11.  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 the policy for appeals and petitions for removal of unfavorable information from official personnel files.  It states 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 individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  It further stipulates only letters of reprimand, admonition or censure may be the subject of an appeal for transfer to the R portion of the OMPF.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DD Form 553, DD Form 616, and 
DA Forms 4187, along with all other documents related to his AWOL and DFR status, be transferred to the R portion of his OMPF has been carefully considered.  However, the evidence is not sufficient to support this claim.

2.  By regulation, the DD Form 553 and DD Form 616 will be filed in the CD section of the P portion of the OMPF; and all DA Forms 4187 documenting time lost (AWOL/DFR) will be filed in the SC section of the P portion of the OMPF.  Further, in order to support removal of official documents properly filed in the OMPF, the member must provide evidence of a clear and convincing nature that the document(s) is (are) untrue or unjust.  Further, only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the 
R portion of the OMPF.  

3.  In this case, the documents in question documenting time lost on the part of the applicant were properly filed in the P portion of his OMPF, as required by regulation.  The applicant has failed to provide clear and convincing evidence that the documents in question are untrue or unjust.  As a result, there is no basis for removal of these documents from his OMPF.

4.  Further, the governing regulation stipulates only letters of reprimand, admonition or censure may be the subject of an appeal for transfer to the R portion of the OMPF.  As a result, given the documents in question are not in one of these defined categories, there are no provisions allowing for transfer to the OMPF.  As a result, there is an insufficient evidentiary basis to support granting the applicant relief.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

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.
ABCMR Record of Proceedings (cont)                                         AR20100012820



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ABCMR Record of Proceedings (cont)                                         AR20100012820



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