IN THE CASE OF:	  DUSENBERRY, RICHARD R. 

		BOARD DATE:	    28 January 2014

		DOCKET NUMBER:  AR20130020699 


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 following documents from his Army Military Human Resource Record (AMHRR) (formerly known as Official Military Personnel File OMPF)):

* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 3 March 2003
* Headquarters, 89th Regional Support Command, Orders 03-202-00015, dated 21 July 2003

2.  The applicant states, in effect, he was assigned to the 389th Engineer Battalion which was scheduled to deploy to Iraq in March 2003.  He sought medical treatment for a rash that he was told would prevent him from being able to deploy with his unit.  Since the unit was a detachment, there was no place for him to drill so he was sent to 339th Military Police Company.  He wanted to deploy so he got rid of the rash and went on active duty in order to deploy.  Orders 03-202-00015, dated 21 July 2003, show he was reassigned from 389th Engineer Battalion to the U.S. Army Reserve (USAR) Control Group (Annual Training) effective 21 July 2003 as a result of unsatisfactory participation.  He contends this is untrue because he was drilling with the 339th Military Police Company, where he was told to go and it was also that unit which released him to go on active duty.  He concludes that he would like to have both of these documents removed from his AMHRR because one is untrue and the other pertains to a rash that was not permanent and was treated so he could deploy.

3.  The applicant provides no additional evidence.
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 enlisted in the USAR on 24 March 2000.

3.  The applicant's record contains a DA Form 2173, dated 3 March 2003, which shows while serving on active duty for training with Company C, 389th Engineer Combat Battalion, he was taken to a medical clinic to have a skin rash examined.
The examining physician noted the applicant reported he had the skin rash off and on for years and that it got worse with persistent exposure to sunlight.  His record also contains a memorandum, dated 9 June 2003, which shows a line of duty investigation was conducted and the final determination was that his rash was incurred in line of duty.  This document is filed in the service folder of his AMHRR.

4.  His record contains Headquarters, 89th Regional Support Command, Orders 03-202-00015, dated 21 July 2003, which show he was reassigned from Detachment 1, Company C, 389th Engineer Combat Battalion to the USAR Control Group (Annual Training), U.S. Army Reserve Personnel Command (AR-PERSCOM), St. Louis, MO, effective 21 July 2003.  The reason for this action was cited as unsatisfactory participation.  This document is filed in the service folder of his AMHRR. 

5.  AR-PERSCOM, St. Louis, MO Orders C-08-320420, dated 18 August 2003, show the applicant was voluntarily released from the USAR Control Group (Annual Training) and assigned to 339th Military Police Company effective 15 August 2003.

6.  Headquarters, 89th Regional Readiness Command, Wichita, KS, Orders 05-039-00035, dated 8 February 2005, show that while serving as a member of 339th Military Police Company he was honorably discharged from the USAR as a 
result of his immediate enlistment in the Active Army on 2 December 2004.  He is currently serving in the Regular Army in the rank/grade of staff sergeant/E-6.

7.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR, formerly known as the Official Military Personnel File.  Appendix B (Documents Authorized for Filing in the AMHRR and/or Interactive Personnel Electronics Records Management System), Table B-1 (Authorized Documents) shows DA Forms 2173 and assignment or transfer orders are filed in the service folder of the AMHRR.

8.  The purpose of maintaining the AMHRR is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the AMHRR 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 AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.

9.  Title 10, U.S. Code, section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of documentation from his AMHRR was carefully considered.

2.  Evidence clearly shows a physician examined his skin rash on 3 March 2003 and documented this medical event on a DA Form 2173 which is properly filed in the service folder of his AMHRR.  The applicant's contention that this document should be removed because the rash was temporary is duly noted.  However, there is no stipulation in the governing regulation that provides for the removal of a properly-filed DA Form 2173 simply because the medical condition was temporary.

3.  The applicant contends that Headquarters, 89th Regional Support Command, Orders 03-202-00015, dated 21 July 2003, erroneously show he was transferred to the USAR Control Group (Annual Training) as a result of unsatisfactory performance.  However, he has failed to provide any evidence to the contrary.  If he was, in fact, training with 339th Military Police Company during the time in question it should be documented and he should provide this evidence in order to receive relief.  In the absence of evidence to the contrary, his claim is unfounded at this time.

4.  The documents that appear in the applicant's AMHRR are properly filed and he has failed to provide any evidence showing they are either erroneous or unjust.  Therefore, there is no basis for removing them.

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)                                         AR20130020699





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ABCMR Record of Proceedings (cont)                                         AR20130020699



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