IN THE CASE OF:	  

		BOARD DATE:	  9 May 2013

		DOCKET NUMBER:  AR20120018042 


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:

	a.  Removal of all adverse information from his Army Military Human Resource Record (AMHRR) (formerly known as Official Military Personnel File) pertaining to being absent without leave (AWOL)/dropped from the rolls (DFR).

	b.  Removal of the 104 days of time lost shown in his Enlisted Record Brief (ERB).

	c.  Restoration/Reinstatement of his secret security clearance.

	d.  Removal of all references on file at the U.S. Army Criminal Investigation Command (USACIDC also known as CID) and other agencies relating to his AWOL/DFR.

2.  He states Army Regulation 635-5 (Personnel Separations – Separation Documents), section I, paragraph 2-1 states the DD Form 214 (Certificate of Release or Discharge from Active Duty) is a summary of a Soldier's most recent period of continuous active service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty (REFRAD), retirement, or discharge.  The Board has his DD Form 214 and supporting documents.  He asks the Board to please base its decision on his DD Form 214 and not the DA Forms 4187 (Personnel Action).     

3.  He states he was accused of AWOL on 14 December 2008.  He was accused of being AWOL from 20 December 2008 to 30 March 2009 and then DFR.  His military pay and benefits were withheld from 1 March to 15 June 2009.  In March of 2009, he was charged and scheduled to face a summary court-martial.  In April 2009, he elected to face those charges in a special or general court-martial instead of the previously-offered summary court-martial.  On 1 May 2009, his pending charges were referred by the U.S. Army 6th Recruiting Brigade, in accordance with (IAW) Rule for Court-Martial (RCM) 404(c) for disposition.  The brigade's recommendation was special court-martial with the authority to adjudge a bad conduct discharge.  In June 2009, the special court-martial proceeding was terminated, the case dismissed, and he was exonerated of all charges.  On 21 August 2009, he was REFRAD due to expiration term of service with a reason for separation of completion of required active service.  He was given a separation code of VBK and an honorable characterization of service with no time lost.  On 17 August 2009, he received notice of his REFRAD.

4.  Upon inventory of his records and prior to his discharge, he discovered four DA Forms 4187, a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), and a DA Form 4856 (Developmental Counseling Form) in his AMHRR.  He presumed these forms were inserted into his AMHRR in preparation for his special court-martial.  A review of his ERB reflected time lost of 104 days in section III, and his secret security clearance flagged with the incident report.

5.  He has taken steps by requesting his last command, by way of request for redress, to have these records expunged from his military records with no success.  The command had assured him these records were not in his AMHRR.  But, a recent request through his State Senator to search for any special and general court-martial proceedings against him revealed adverse information in his AMHRR at the U.S. Army Human Resources Command (AHRC), St. Louis.  These records are the same records his last command assured him were no longer in his AMHRR (see attached answer for Request for Redress).  He was offered a lighter summary court-martial in light of the accusations of AWOL and DFR.  He instead chose to be heard in either a special or a general court-martial proceeding.  He believes the command had their chance to try him in a court of law but decided not to.  He, on the other hand, was never given the chance to refute the charges against him.

6.  He was wrongly treated by his last command by being given 1 day to clear his unit and battalion, and 1 day to out process the Army.  By denying him the allowable number of processing days per Army Regulation 600-8-101 (Personnel Processing (In-, Out, Soldier Readiness, Mobilization and Deployment)), the unit denied him the opportunity to make sure his military records were restored as requested.  He also believes the U.S. Army did him wrong by publishing the REFRAD memorandum on 17 August 2009 and his expiration term of service orders on 20 August 2009, 4 and 2 days respectively before his REFRAD.  By doing so, the Army denied him the opportunity to have his medical screening; dental screening; and most of all, make sure his military records were restored and in order.  Again, this is a direct violation of Army Regulation 600-8-101.  He strongly believes keeping a record of what he "was accused of," but "was not found guilty of," is in direct violation of his constitutional rights under the Fifth Amendment.  The accusations/charges were never proven and should not be in his permanent records.

7.  The applicant provides:

* DD Form 214 for the period ending 29 February 2008
* recall to active duty orders
* Incident Information Report
* DA Forms 4187
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* DA Form 268 (Report to Suspend Favorable Actions (FLAG))
* DD Form 553
* DD Form 616 (Report of Return of Absentee)
* ERB
* DA Form 4856
* DD Form 458 (Charge Sheet)
* Court-Martial Chain of Command Transmittals and Recommendations
* referral of charges memorandum
* appointment of summary court-martial officer memorandum
* summary court-martial referral memorandum
* summary court-martial notification memorandum
* transfer of court-martial jurisdiction memorandum
* REFRAD memorandum
* REFRAD orders
* REFRAD orders amendment
* DD Form 214 for the period ending 21 August 2009
* DA Form 873 (Certificate of Clearance and/or Security Determination)
* clearance papers
* Request for Redress and Answer
* emails
 
CONSIDERATION OF EVIDENCE:

1.  There is no evidence the applicant exhausted his administrative remedies by requesting an amendment or removal of the titling actions upon which the Defense Central Investigations Index (DCII) information is based through the USACIDC, U.S. Army Crime Records Center.  Therefore, this portion of his request will not be discussed further.

2.  His military records show he was retired from active service on 29 February 2008 due to sufficient service for retirement and placed on the retired list effective 1 March 2008.

3.  Orders A-08-815604, dated 14 August 2008, issued by AHRC recalled him to active duty from a retired status as a sergeant first class effective 31 August 2008 for a period of 730 days.

4.  He submits a U.S. Army Recruiting Command (USAREC) Form 958 (Incident Information Report) prepared at 0930 hours on 13 December 2008.  The report stated the applicant had been AWOL since 1500 on 12 December 2008.  It stated that on Friday morning the applicant's station keys, government keys, government cell phone, and backpack were left on the station commander's desk.  The applicant failed to report to Primm, Nevada for the 1500 report time and battalion personnel asset inventory.  Based on phone calls it was learned he was on his way to AHRC, St. Louis trying to find out about his status.

	a.  Follow-up #1 states that at 1130, 13 December 2008, he was passing through Amarillo, TX on his way to AHRC, St. Louis.  He claimed he was going there because he had a financial issue and that his noncommissioned officer (NCO) support chain was not supportive.

	b.  Follow-up #2 states on 15 December 2008, Monday, Lieutenant Colonel (LTC) H spoke with Major D, the Headquarters and Headquarters Company Commander, at AHRC, St. Louis and other personnel on multiple occasions in order to resolve the applicant's AWOL status in St. Louis.  In consultation with brigade legal, LTC H elected to return the applicant to duty status and place him on temporary duty travel orders in order to return him to his unit of assignment.  IAW the official travel timelines outlined in the Joint Federal Travel Regulations, the applicant was ordered to return to the company headquarters not later than 1700 hours, 20 December 2008.  Specific orders and instructions were on the attached memorandum of record.

	c.  Follow-up #3 stated on Thursday, 18 December 2008, Sergeant First Class M (applicant's station commander) received an email from the applicant stating he would not be coming back.  The applicant also emailed LTC H a document saying he wouldn't be returning "as promised."

5.  The applicant's records maintained in the interactive Personnel Electronic Records Management System contain a DA Form 4187, dated 13 December 2008, showing his duty status was changed from present for duty to AWOL effective 1500 hours, 12 December 2008. 

6.  He submits a DA Form 3881, dated 15 December 2008, showing an investigator with AHRC, St. Louis wanted to question him about the alleged offense of being AWOL.

7.  He submits a DA Form 268, dated 16 December 2008, showing a flag was initiated effective 12 December 2008, for the reason of an adverse action.

8.  He submits an email transmission from him to his battalion commander, dated 16 December 2008, stating at that time he was en route back to southern California.

9.  He submits an email transmission from him, addressed to First Sergeant C, dated 18 December 2008, stating he was in Albuquerque, NM.  He stated he had checked with the Defense Finance and Accounting Service (DFAS) again that day and they didn't have anything on his advance.  He had $300 in his account at that time.  If he continued to Southern California, he would have $100 by that time.  Christmas was around the corner and he had children.  He was seriously considering going back home and spending what he had left with his children.  He shouldn't have spent money on that trip in the first place.  He stated he really didn't want to be in the Army any more.  He was financially worse off now than when he was retired. 

10.  He submits an email transmission from him to his battalion commander stating "my reporting date is today" and further stating he believed the battalion commander had already gotten word from First Sergeant C that he wouldn't be there as promised.  He stated that it wasn't because he was disobeying the battalion commander's orders, but that he thought it was the right thing to do.  He believed the battalion commander would agree with him when he received the full details.  He stated he turned back from New Mexico on Thursday after he checked with DFAS and found out he wouldn't be getting any advance pay until Tuesday, 23 December 2008, at the earliest, if DFAS received the request by Monday.  If he were to continue traveling to southern California he would not only have arrived there broke, but he could have put his family in a difficult situation.  He thought about the situation he was in and from his own assessment, coming back to Arkansas was the best course of action for the command, his family, and for him.

11.  His records contain a:
* DA Form 4187, dated 12 January 2009, showing his duty status was changed from AWOL to present for duty effective 0730 hours, 15 December 2008
* DA Form 4187, dated 21 January 2009, showing his duty status was changed from present for duty to AWOL effective 1700 hours, 20 December 2008

12.  He submits a DA Form 4187, dated 23 February 2009, showing his duty status was changed from AWOL to DFR effective 1700 hours, 21 January 2009.
 
13.  His records contain:

* a DD Form 553, dated 24 February 2009, showing him with a date of desertion of 21 January 2009
* a DD Form 616, dated 24 March 2009, showing he was apprehended by civil authorities at 0926, on 24 March 2009, in Rogers, AR

14.  He submits a DA Form 4187, dated 3 April 2009, showing his duty status was changed from DFR to present for duty effective 1200 hours, 31 March 2009.

15.  He submits a Personnel Control Facility, Fort Sill, OK, memorandum, subject: AWOL/Deserter Returnee Statement [Applicant].  He stated he went AWOL for financial reasons and had discussed his situation with his NCOs and officers.  He did not see the chaplain of the Red Cross before going AWOL.  He stated the Army never gave him a definite answer.

16.  He submits an ERB, dated 1 April 2009, on which he highlighted "#Days Lost 63" and a flag start date of 12 December 2008. 

17.  He submits a DA Form 4856, dated 3 April 2009, stating the counseling was being conducted for the purpose of providing expectations and conduct after his returning to duty from a period of being AWOL.  The counseling was conducted by his battalion commander.

18.  He submits a DD Form 458, dated 20 April 2009, showing charges were preferred against him for:

* being AWOL from 12-15 December 2008
* being AWOL from 20 December 2008 to 31 March 2009
* willfully disobeying a lawful command to report to his headquarters not later than 1700 hours, on Saturday, 20 December 2008

19.  On 21 April 2009, the pending charges against the applicant were referred to a summary court-martial.

20.  An email, dated 1 May 2009, stated the applicant declined a summary court-martial.  He demanded a trial by special court-martial.

21.  A U.S. Army, 6th Recruiting Brigade memorandum, subject: Referral of Charges [Applicant], dated 1 May 2009, shows the brigade commander recommended the applicant's pending charges be referred to a special court-martial with authority to adjudge a bad conduct discharge.

22.  On 28 May 2009, the applicant was notified a summary court-martial would be conducted.
   
23.  A Headquarters, USAREC memorandum (date presumed to be in June 2009) requested the applicant be attached to the Headquarters, National Training Center for the purpose of court-martial jurisdiction and the general administration of military justice.

24.  On 17 August 2009, the Headquarters, USAREC request for early REFRAD for the applicant was approved with a REFRAD date of not later than 21 August 2009.

25.  Orders 232-0027, dated 20 August 2009, issued by Headquarters, National Training Center and Fort Irwin released him from active duty effective 21 August 2009.

26.  The DD Form 214 he was issued for this period of service shows he was REFRAD and transferred to the Retired Reserve with an honorable characterization of service with a separation code of "VBK" (completion of required active service).  The separation authority was Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers of the Army in Support of Mobilization and Peacetime Operations).  Item 29 (Dates of Time Lost during This Period) shows "none."

27.  A memorandum from him addressed to the Commander, 6th USAREC Brigade, subject: Request for Redress, dated 23 April 2009 [sic], provided the following information:

	a.  On 12 August 2009, the applicant received notice the command's request for his early REFRAD was approved.  He was informed he would be REFRAD no later than 21 August 2009.

	b.  On 17 August 2009, his attorney informed him to forward through the appropriate channels his request for removal of adverse information from his AMHRR.

	c.  Late afternoon, on 20 August 2009, he was summoned to pick up his orders (published the same day) and to clear the battalion.

	d.  Due to time constraints on 20 August 2009, and the fact that he had to be at Fort Irwin the next day to clear and out process active duty, he was able to get reassurance from LTC H that his request for the removal of adverse information from his AMHRR would be routed to the 6th USAREC Brigade.

	e.  After more than 8 months since his request, he had neither received a response from the command nor seen any adverse documents removed from his AMHRR as requested.

28.  On 20 May 2010, the U.S. Army 6th Recruiting Brigade Commander, provided the following in response to the applicant's request for redress.

	a.  A review of his AMHRR both at the brigade level and by AHRC revealed a total of one negative document.  That document was a DD Form 553.  The Southern California (SOCAL) battalion command confirmed they did not forward that document to AHRC for filing in his AMHRR.  As the battalion command did not initiate the filing of the DD Form 553, there was no violation of the referral process regarding negative information by that command as contemplated in Army Regulation 600-37 (Unfavorable Information, 19 December 1986).  Therefore, there was no valid basis for the request that that command remove the DD Form 553 from his AMHRR.

	b.  Army Regulation 630-10 (Personnel Absences, 13 January 2006) held that the disciplinary aspects of an absence were independent and separate from a commander's decision to charge a Soldier for time lost.  If it was determined a mistake was made as to whether or not time was lost, it should be corrected by the commander.  The fact that he did not receive adverse administrative action, non-judicial punishment, or judicial punishment for his AWOL from his command had no bearing on the separate decision by the battalion command to charge the time as lost.  Further, there appeared to be no mistakes regarding the AWOL or DFR reports made by the battalion command which would require correction.  Therefore, the commander declined to initiate any action to correct the time lost as recorded in his ERB.

	c.  The Serious Incident Report related to his AWOL from his command was not reported to the Joint Personnel Adjudication System (JPAS).  As such, his security clearance was never flagged, nor was a final adjudication made by the Department of the Army Central Clearance Facility at Fort Meade.  The applicant's security clearance therefore remained unaffected and there was no Serious Incident Report to remove from JPAS.

	d.  As stated above, a commander's decision to charge time lost for an absence is independent from the decision to pursue disciplinary action.  The battalion command was within their rights to charge the time lost as a result of the applicant's AWOL, and again there appeared to be no mistake in the records indicating his AWOL or DFR status.  The commander declined to provide a DA Form 4187 or any other form or document to DFAS stating that the time lost which was charged by SOCAL battalion was in error as a substantive matter.

29.  A note in the Soldier Management System (SMS), dated 23 August 2011, shows his clearance was no longer valid because he was retired and had more than a 24-month break in service.  It stated that if a security clearance was required to please contact the AHRC, St. Louis Security Management Office for further instructions.

30.  Army Regulation 601-10 prescribes policy and responsibilities for:

* recalling retired Soldiers in time of a national emergency, mobilization, or war when declared by the President or Congress, in the interest of national defense, or as otherwise authorized by law
* recalling retired Soldiers to fill active Army requirements in support of peacetime operations
* pre-assigning selected retired Soldiers
* peacetime management of retired Soldiers in preparation for their use

31.  Army Regulation 601-10 states Army organizations may request the early release of a retiree from active duty.  Retirees can be released for poor performance, if they are no longer operationally required, for personal hardship, or any other reason deemed appropriate.  Requests must be signed by the first general officer in the chain of command.  Requests will include the reason for the early release.

32.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 
	a.  Chapter 7 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the AMHRR.  Paragraph 7-2 of this regulation states that once an official document has been properly filed in the AMHRR, 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 AMHRR.

	b.  The glossary defines unfavorable information as any credible derogatory information that may reflect on a Soldier’s character, integrity, trustworthiness, or reliability.

33.  Army Regulation 600-8-101 prescribes the military personnel processing requirements for in-processing; the Soldier Readiness Program and mobilization; out-processing for permanent changes of station, transition, extended temporary duty (90 or more days), individual temporary changes of station (TCS), and unit deployments (including overseas deployment training; individual and unit redeployments either back to the home station or to another theater/TCS station; reintegration (the processing required upon return from a deployment); and demobilization.  Chapter 3 states Soldiers will be given a minimum of 3 working days to out-process unless it is locally determined that Soldiers can out-process quicker.

34.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  The purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

35.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers on retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of REFRAD, retirement, or discharge.

36.  Army Regulation 27-10 (Military Justice) prescribes and implements the policies and procedures pertaining to the administration of military justice.  It implements the procedures prescribed by the Manual for Courts-Martial.  
	a.  If the proceedings have resulted in an acquittal of all charges and specifications or in termination before or after findings, the record of trial will be prepared under RCM 1103(e).  In addition, the record will include a summary of the trial proceedings up to the disposition of the case and all documentary exhibits and allied papers.

	b.  Upon completion of a review and any corrective action on records of trial by summary court-martial and records of trial by special court-martial which do not involve approved bad conduct discharges, the record of trial and two copies of the initial promulgating order and any corrective orders in the case will be filed in the office of the staff judge advocate of the command of the supervisory authority.

	c.  One copy of each order will be furnished to the convening authority to be transmitted to the custodian of the personnel records of the accused for filing in the individual's Military Personnel Records Jacket, U.S. Army (DA Form 201) as a semi-permanent document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends all adverse documents related to the charges of AWOL and disobeying a lawful order preferred against him should be removed from his AMHRR because he was exonerated of these charges when the command did not complete court-martial proceedings in his case.  The fact is, court-martial charges were preferred against him for departing his unit in an AWOL status on 12 December 2008 and remaining so until 15 December 2008, for being AWOL from 20 December 2008 to 31 March 2009 (a violation of Article 86 of the Uniform Code of Military Justice), for disobeying a lawful order when he failed to return to his duty station as directed.  He requested his charges be heard by a special court-martial instead of a summary court-martial.  The final disposition of the applicant's court-martial case is not available for review by the Board.  However, even if the command decided not to proceed with a court-martial and instead simply requested REFRAD, this would not be a sign he was exonerated or innocent of the charges against him.

2.  He contends that keeping a record of what he "was accused of," but "was not found guilty of," is in direct violation of his constitutional rights under the Fifth Amendment.  However, by regulation, in order to remove a document from the AMHRR there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant provided no evidence to this Board that the documents he requested removed are untrue or unjust in this case.  Therefore, the DA Forms 4187 and DD Form 553 contained in his AMHRR were properly filed and should not be removed.
3.  Furthermore, for historical purposes, the Army has an interest in maintaining the accuracy 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 is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to have his military records changed to reflect the changes he requested, there is not a sufficiently compelling reason for compromising the integrity of the Army's records at this time.

4.  The ERB he submits shows 63 days of time lost.  He contends his ERB should not reflect any time lost because he wasn't found guilty of being AWOL.  The commander determines the amount of time a Soldier has that will be credited as lost time.  The fact that time lost was not recorded on his DD Form 214 is not evidence of an error on the ERB.  Therefore, there is no basis for correcting this information in his records.

5.  He contends his secret security clearance was flagged with the incident report.  The 6th Recruiting Brigade memorandum to him stated the Serious Incident Report related to his AWOL from his command was not reported to the JPAS.  The memorandum stated his security clearance was never flagged, nor was a final adjudication made by the Department of the Army Central Clearance Facility at Fort Meade.  His security clearance therefore remained unaffected and there was no Serious Incident Report to remove from JPAS.  Furthermore, an entry in the SMS, dated 23 August 2011, indicates his security clearance was no longer valid because he was retired with more than a 24-month break in service.  It stated that if a security clearance was required he should contact the AHRC, St. Louis Security Management Office for further instructions.  As such, it doesn't appear that his security clearance was invalid due to a serious incident report.

6.  With respect to his contention he was wrongly treated by his last command by being given 1 day to clear his unit and battalion, and 1 day to out process the Army, the pertinent regulation states Soldiers will be given a minimum of 3 working days to out-process unless it is locally determined that Soldiers can out-process quicker.  Absent evidence to the contrary, it must be presumed the command determined the out-processing time appropriate in his case.

7.  In the absence of evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.



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)                                         AR20120018042



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ABCMR Record of Proceedings (cont)                                         AR20120018042



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