IN THE CASE OF:	  

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20150005660 


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:

* the removal of all documents related to his absence without leave (AWOL) from his official military personnel file (OMPF)
* the Board reverse the decision of the Department of the Army Suitability Evaluation Board (DASEB) to transfer such documents to the restricted folder of his OMPF, retroactive vice not retroactive
* a personal hearing 

2.  The applicant states:

	a.  He requested the removal of all the AWOL documents from his OMPF.  He felt the documents were unjustly filed on his OMPF because of his documented post-traumatic stress disorder (PTSD) and severe depression.  Almost immediately after his deployment to Afghanistan in 2003/2004, he was diagnosed with PTSD but was not given the proper treatment plan to recover and placed in the hands of civilian doctors who had no experience in handling Soldiers with injuries.  He went AWOL. 

	b.  The DASEB considered his case and granted him partial relief in that it transferred said documents to the restricted folder of his OMPF.  However, the DASEB did not make this decision retroactive, which makes such decision ceremonial with no useful benefits and circumvents the guidance in Army Regulation 600-8-104 (Army Military Human Resources Record Management (AMHRR)).
	c.  The regulation states the general folder contains general, administrative, and service documents.  Appendix B contains all documents approved by the Department of the Army and required to be filed in the AMHRR.  Packets pertaining to being dropped from the rolls are filed in the service folder and allied documents are filed under this type of document. 

	d.  At a minimum, the Board should consider transferring these documents to the restricted folder instead of the performance folder, and if the filing is made retroactive this would afford him the opportunity for continued service and promotion based on previous promotion trends. 

3.  The applicant does not provide any additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a commissioned officer of the Army and executed an oath of office on 13 December 1997. 

2.  He entered active duty and served in a variety of stateside or overseas assignments.  He was promoted to captain on 1 August 2001 and to major on 1 November 2007. 

3.  On 1 January 2009, he departed his unit in an AWOL status, and on 31 January 2009, he was dropped from the rolls (DFR) as a deserter.  His duty status is recorded on a DA Form 4187 (Personnel Action). 

4.  On 10 March 2009, his unit commander initiated a DD Form 553 (Deserter /Absentee wanted by the Armed Forces) and notified the U.S. Army Deserter Information Point (USADIP) of his status.  The USADIP initiated a USADIP Form 85 (Cover Sheet) and a USADIP Form 225-R (Phone/Verbal Conversation Record) and both are attached to the USADIP Deserter Processing Checklist. 

5.  Also on 10 March 2009, his unit commander prepared a DD Form 458 (Charge Sheet) that shows court-martial charges against him for one specification of AWOL from 1 January 2009 to on or about (blank date). 

6.  He surrendered to military control at Fort Myer, VA on 16 March 2009.  His duty status change from DFR to present for duty (PDY) was documented on a DA Form 4187.  

7.  On 16 March 2009, the USADIP initiated a DD Form 616 (Report of Return of Absentee) to document his return to duty.  
8.  On 8 November 2013, he petitioned the DASEB for removal of the derogatory documents from the performance file of his AMHRR.  He stated that there were no charges pending against him which supports his position that the documents were erroneously filed.  He also stated he was under the care of a medical physician for PTSD and severe depression. 

9.  On 31 July 2014, the DASEB (AR20140004886) concluded the evidence presented did not clearly establish that the documents being contested were untrue or unjust and as a result the DASEB denied his request. 

10.  On 4 November 2014, he requested the DASEB reconsider his request and he again stated he was suffering from PTSD and then cited his performance, achievements, and requested a personal appearance. 

11.  In March 2015, the DASEB (AR20140019449) concluded there was no basis for the removal of the contested documents from his OMPF.  However, the DASEB gave consideration to his medical situation and concluded that although the documents in question are not untrue and the lost time must still be made good, the documents should be transferred to the service portion of the AMHRR. The DASEB also concluded this action was not retroactive and did not constitute grounds for promotion reconsideration if previously non-selected. 

12.  Army Regulation 600-8-104 prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table   3-1 describes the official military personnel file folders in the AMHRR: 

	a.  Performance Folder:  contains performance related information to include evaluations, commendatory documents, specific disciplinary information, and training/education documents.  The primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty.  This folder populates various board related applications (for example, Army Selection Board System, National Guard Army Board System).  

	b.  Service Folder: contains general, administrative, and service documents and data.  Service compensation folder contains pay substantiating documents.   The service folder contains general, administrative, and service documents and data. 

	c.  Restricted Folder: contains documents that may normally be considered improper for viewing by selection boards or career managers.  It includes masked documents defined in paragraph 3-10.

	d.  Flight Folder: contains aviation service documents.

	e.  Medical Folder: contains health information, such as accession/ retention/separation medical documents and periodic health assessment.

	f.  State/Territory Folder: contains documents referencing State awards and personnel actions.

13.  The proponent for this regulation, the Army Personnel Records Division, will update the list of authorized documents for filing in the AMHRR quarterly.  The new list of authorized documents will supersede the list in Table B-1, Appendix B of Army Regulation 600-8-104.  The DA Form 4187 filing location depends on the type of change.  DA Forms 4187 changing duty status from PDY to AWOL, AWOL to DFR, or entering/departing confinement are indexed separately as DA Form 4187 (Performance/Disciplinary).  The DFR packet with specified allied documents is to be filed in the service folder.

14.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The applicant's records show he departed his unit in an AWOL status on 1 January 2009 and he was DFR on 31 January 2009.  He returned to military control (PDY) on 16 March 2009.  As required by regulation, his duty status was documented on a DA Form 4187, his charges were recorded on a DD Form 458, his DFR status was captured on a DD Form 553, and his return was recorded on a DD Form 616. 

3.  He applied to the DASEB twice.  On relook, the DASEB granted relief by transferring the contested documents to the service folder of his AMHRR.   Regardless whether the applicant was charged or punished for this offense, his lost time – which must still be made good – is not untrue or unjust.  Because the documents are not untrue, they were not filed in error and their filing is not unjust. Thus, when the DASEB transferred the documents, the transfer was not retroactive because there was no error in the filing at the time the filing occurred. This remains true today.  When these documents were filed, they were not untrue.  Therefore, their filing was not in error.  Because they are correctly filed, there is no need to transfer those documents to another folder.  

4.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  There is a reluctance to remove or transfer adverse information to the restricted section of an OMPF when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  Here, the contested documents are properly filed and the applicant has not proven them to be either untrue or unjust. He should not receive the requested relief. 

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)                                         AR20150005660



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ABCMR Record of Proceedings (cont)                                         AR20150005660



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