IN THE CASE OF:
BOARD DATE: 26 February 2015
DOCKET NUMBER: AR20140011653
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, removal of records pertaining to unexcused absences from his Official Military Personnel File (OMPF).
2. The applicant states that he was never absent from Unit Training Assembly (UTA) drills; therefore, records pertaining to unexcused absences should be removed because they are false.
3. The applicant provides copies of a commander's statement concerning the applicant's ninth unexcused absence, dated 14 February 1985; five certificates; and his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 had prior enlisted service in the Regular Army (RA) from
12 August 1971 through 18 August 1974.
3. On 8 November 1974, he reentered the RA in an enlisted status. He was promoted to staff sergeant/pay grade E- 6 on 7 February 1982 in military occupational specialty 68J (Aircraft Armament). He was honorably discharged from the RA on 9 March 1983.
4. He enlisted in the U.S. Army Reserve (USAR) on 10 March 1983 for a period of 3 years. He was assigned to Company D, 2nd Battalion, 310th Regiment,
2nd Brigade, 78th Division (Training), Lodi, NJ.
5. A review of the applicant's OMPF shows the Commander, Company D,
2nd Battalion, 310th Regiment, 2nd Brigade, Lodi, NJ, notified the applicant via United States Postal Service certified mail:
a. of unexcused absences for UTA, as follows:
Unexcused Absence
Dates UTA Total Cumulative Total
23 and 24 June 1984 4 4
8 and 9 December 1984 4 8
5 and 6 January 1985 4 12
b. On 28 January 1985, of the total number of unexcused absences he had incurred within one year and informed him that he was being transferred to the USAR Control Group (Individual Ready Reserve) as an unsatisfactory participant.
c. A Commander's Statement Concerning Ninth Unexcused Absences, dated 14 February 1985, that shows the commander reviewed the circumstances surrounding the applicant's ninth unexcused absence incurred on 5 January 1985. He noted that the applicant did not respond telephonically or otherwise to previous letters of instruction or notifications despite the period of time covered for his excessive absences. The commander concluded that the applicant did not offer any cogent or emergency reason(s) that prevented him from attending the UTAs.
d. A DA Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 14 February 1985, that shows the commander requested involuntary assignment of the applicant to the USAR Control Group (Reinforcement) under the provisions of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 4-11, based on unsatisfactory participation.
6. A further review of the applicant's OMPF failed to reveal any evidence of a response to the letters of instruction or notifications of unexcused absences.
7. In support of his application the applicant provides the following documents:
a. five certificates that show the applicant:
* completed the Drill Sergeant Preparatory Course on 4 February 1984
* completed the Army Recruiter Course on 19 July 1985
* safely operated a vehicle from 29 May 1985 to 30 May 1986
* was recognized for his outstanding recruiting effort on 30 June 1986 and 31 December 1986
b. his DD Form 214 that shows he served honorably on active duty as a member of the USAR from 27 May 1985 through 4 September 1987 and that he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12c, based on misconduct commission of a serious offense.
8. Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.
a. Only those documents listed in the "Documents Required for Filing" are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted.
b. The OMPF Document List shows that notifications of unexcused absence/unsatisfactory participation are filed in the service folder of the OMPF.
9. 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; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.
a. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.
b. Paragraph 7-2 (Policies and Standards) provides that 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the records pertaining to unexcused absences should be removed from his OMPF because they are false.
2. The evidence of record shows the applicant's commander took action to ensure that appropriate effort was made to contact the applicant concerning his unauthorized absences. The evidence also shows correspondence notifying the applicant of his unexcused absences/unsatisfactory participation is properly filed in his OMPF.
a. The unexcused absences occurred during the period 23 June 1984 through 6 January 1985.
b. The applicant provided a certificate of training showing he completed a course of instruction prior to 23 June 1984. He also provided evidence of his military training, duty performance, and military service that occurred subsequent to 6 January 1985. However, he offers no evidence that directly addresses the period(s) of his unexcused absence(s).
3. The evidence shows unexcused absence/unsatisfactory participation notifications are authorized to be filed in the applicant's OMPF.
4. By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. No such evidence has been provided in this case. Therefore, the documents in question should not be removed from the applicant's OMPF.
5. Therefore, in view of the foregoing, there is an insufficient evidentiary basis to grant 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.
_______ _ _______ ___
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) AR20140011653
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ABCMR Record of Proceedings (cont) AR20140011653
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