PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:      18 March 1998
	DOCKET NUMBER:   AC97-09752

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:

	Mr.	John N. Slone		Chairperson	
	Mr.	Thomas N. Kuhn		Member	
	Ms.	Celia L. Adolphi		Member	

	Also present, without vote, were:

	Mr.	Karl F. Schneider		Acting Director	
	Mr.	Jessie B. Strickland		Examiner	

	The applicant and counsel if any, did not appear before the Board.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, the removal of a general officer memorandum of reprimand (MOR) from the restricted fiche of his Official Military Personnel File (OMPF).

3.  The applicant states, that the MOR has literally destroyed his military career and that he has tried on two consecutive occasions to have the MOR removed.  He further states that the he was not informed or notified that an investigation into alleged recruiting malpractice was conducted until he returned from the Persian Gulf in November 1992.  He further states that the final disposition was imposed against him on 29 October 1992 which prevented further inquiry on his part.  He also states that he was found guilty before he could rebut the findings of the Article 15-6 investigation and that he was denied due process.

4.  The applicant’s military records show that the applicant was promoted to the pay grade of E-6 on 1 August 1989.

5.  On 29 October 1992 a general officer MOR was imposed against the applicant from the commanding general of the Recruiting Command for his being grossly negligent in advising an applicant.  At the time the MOR was imposed, the applicant was no longer assigned to the Recruiting Command and there is no evidence in the available records to show that the MOR was actually referred to the applicant for rebuttal or comment.  His records do show however that the applicant received an award of the Army Commendation Medal for his performance as a recruiter when he departed the Recruiting Command in June 1992 to Fort Hood, Texas.

6.  The applicant appealed to the Department of the Army Suitability Evaluation Board on two separate occasions to have the MOR moved to the restricted fiche of his OMPF and on both occasions his requests were denied based on the lack of sufficient time elapsed and proof that the intent of the MOR had been served.

7.  In the processing of this case, an advisory opinion was obtained from the DASEB.  It opined that the applicant’s performance record had been good and noted not only that the MOR had been filed without the applicant’s rebuttal, but that the applicant had not been relieved for cause nor did he receive an adverse NCO evaluation report.  Therefore, the DASEB accepted the applicant’s application to the Board as a request to have the MOR moved to the restricted fiche of his OMPF and elected to approve his request at this time based on intent served.

8.  Army Regulation 600-37 prescribes the policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  It states, in pertinent part, that the authority to issue and direct the filing of a MOR is restricted to the recipient’s immediate commander or a higher commander in his or her chain of command.  It further states that the unfavorable information will be referred to the recipient for information and acknowledgment of his or her rebuttal opportunity.  The acknowledgment and or rebuttal documents will be filed with the MOR.

CONCLUSIONS:

1.  The Board agrees with the DASEB that the applicant was denied due process by placing the MOR in his OMPF without referring it to him for comment. 

2.  Not only was the applicant not under the command of the imposing officer at the time the MOR was issued (had departed 5 months prior), there is no evidence in the OMPF to show that the MOR was actually referred to the applicant.

3.  The Board notes that the issue in this case is simple due process, an issue the Board does not take lightly.  Furthermore, it is an issue that should have been known by all concerned before the MOR was issued and filed in the applicant’s OMPF as a matter of official record.

4.  While the Board cannot determine if the applicant would have been selected for promotion, he should be afforded the opportunity to compete for promotion without the presence of the MOR in his records.
5.  Therefore, the Board finds that the MOR should be removed form the applicant’s records and that the applicant should be afforded promotion reconsideration by all promotion selections boards that considered the applicant for promotion after the MOR was placed in his OMPF and failed to select him for promotion.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

  a.  by removing the MOR dated 29 October 1992 and all documents related thereto from the OMPF of the individual concerned; and

  b.  by submitting his records, as thus corrected, to a duly constituted special selection board(s) convened under the appropriate criteria of the boards that nonselected him until he is either selected for promotion or has been afforded all promotion reconsideration to which he is entitled as a result of this corrective action. 

2.  That if he is selected for promotion, he be promoted with an appropriate date of rank, or if those NCO’s already selected have not yet been promoted, that he be assigned an appropriate sequence number.

3.  That in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

BOARD VOTE:
 TNK      JS     CLA   GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

		                           
		        CHAIRPERSON