IN THE CASE OF:	  

		BOARD DATE:  20 November 2012

		DOCKET NUMBER:  AR20120015127 


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 documents related to his going absent without leave (AWOL) and being dropped from rolls (DFR) be transferred to the restricted portion of his Army Military Human Resource Record (AMHRR).

2.  He states, as a newly-promoted officer, he feels it would be an injustice for actions that occurred 12 years ago to be a potential discriminator for any future endeavors he may undertake.

3.  The applicant provides his:

* DD Form 458 (Charge Sheet)
* DD Form 553 (Deserter/Absentee Wanted by the Armed Forces)
* DD Form 616 (Report of Return of Absentee)

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant initially enlisted in the Regular Army on 17 August 1999 and after several reenlistments, served until he was discharged on 19 June 2012 after being selected as a warrant officer.  On 20 June 2012, he was appointed as a warrant officer and is currently serving in the rank/pay grade of warrant officer one/W-1 at Fort Sill, OK.  

3.  His record contains and he submitted a:

	a.  DD Form 553, dated 27 July 2001, which shows he was AWOL from 27 June to 27 July 2001.

	b.  DD Form 458, dated 27 July 2001, which shows he was charged with one specification of AWOL on 27 June 2001.  

	c.  DD Form 616, dated 23 September 2001, which shows he surrendered to military authorities and was returned to military control on 23 September 2001 after being DFR on 27 July 2001.

4.  The complete facts and circumstances of his period of AWOL and DFR are not available for review.  However, his record contains a DD Form 214 that shows he completed 12 years, 10 months, and 3 days of creditable active service with 0 days of time lost and was promoted to the rank/pay grade of sergeant first class (SFC)/E-7 with a date of rank of 1 June 2010.

5.  The applicant's record also contains numerous awards and decorations which include but are not limited to:  the Bronze Star Medal, two Army Commendation Medals, Gold Recruiter Badge with two Star Sapphires as well as the Iraq Campaign Medal.  His Noncommissioned Officer Evaluation Reports (NCOERs) rendered after his period of AWOL/DFR show he was consistently rated as "Best Qualified" by his rating officials.  Further, it has been 12 years since he went AWOL and was DFRd.  This would appear to substantiate his claim that the intent of the DD Forms 458, 553, and 616 and allied documents have been served.

6.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that 


once a document is placed in the AMHRR 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, the Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the U.S. Army Human Resources Command, the AMHRR custodian when documents have been improperly filed, Human Resources Command, 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.

7.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in their individual official personnel files and to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files.  

8. Army Regulation 600-37, paragraph 7-2b states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the AMHRR.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  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.  Appeals approved under this provision will result in transfer of the document from the performance section to the restricted section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by transferring the documents related to his going AWOL and being DFRd was carefully considered.

2.  The evidence of record shows the DD Forms 458, 533, 616, and allied documents are properly filed on the performance fiche of the applicant's AMHRR in accordance with applicable regulations.

3.  His advancement through the enlisted ranks to SFC, selection for warrant officer, and the awards he received speak highly of the applicant's performance of duty and outstanding leadership qualities.  His NCOERs rendered after his return to active duty show he was consistently rated as "Best Qualified" by his rating officials.  Further, it has been 12 years since he departed AWOL and was DFRd.  However, the ABCMR should neither authorize transfer of DD Forms 458, 533, 616, and allied documents from the performance to the restricted portion of his AMHRR as they are a history of his military service.  

4.  The governing regulation does authorize the transfer of certain documents from the performance to the restricted section of the AMHRR when it can be determined that the document has served its intended purpose; however, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  There appears to be no compelling reason to compromise the integrity of the Army’s records by transferring the DD Forms 458, 533, 616, and allied documents from the performance to the restricted portion of his AMHRR.

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)                                         AR20120015127





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ABCMR Record of Proceedings (cont)                                         AR20120015127



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