PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 February 1999                   
	DOCKET NUMBER:   AC98-10010
				   AR1998005437

	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.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Patrick Bogenberger		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Gary F. Geraets		Member	

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

	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 that the general officer letter of reprimand, along with all allied documents, he received in October 1991 be removed from his Official Military Personnel File (OMPF) and thereafter a complete copy of his OMPF be furnished him.  He also requests the complete restoration of military service credit and pay and allowances lost when he was nonselected for continuation on active duty in the Army Guard Reserve (AGR) Program and was released from active duty.  He asks advice if he can be reimbursed such expenses as life and health insurance expenses, lawyers fees, etc.  He asks that if restoration of service is approved, that his separation orders be revoked and that his continuation/enrollment into the Montgomery GI Bill be granted.

3.  The applicant states that clear and convincing evidence demonstrates that the reprimand was unsubstantiated by credible and/or relevant evidence; that its placement in his OMPF was in violation of the due process requirements of Army Regulation 600-37; and that it constituted the primary if not the sole reason for his nonselection for continuation on active duty as an AGR officer and his subsequent release from active duty in September 1993.

4.	The applicant’s military records show that he was commissioned a second lieutenant on 31 October 1979 and assigned to the Army National Guard.  He was accessed into the AGR Program on 18 June 1989.  He was promoted to Captain, 0-3, on 14 April 1990.

5.	On 20 October 1991, the applicant was given a general officer letter of reprimand for, during a 5 day period of temporary duty (TDY) in June 1991, staying at an off-post motel when his orders stated he must utilize government quarters and for renting a car when his orders did not authorize a rental car.  A “Commander’s Inquiry” is noted in the first paragraph of the letter but is not listed as an enclosure.  (The defense counsel who assisted him in preparing his rebuttal later attested to the fact that only the letter itself was provided for rebuttal, no additional documents).  The applicant provided a rebuttal statement.  On 5 November 1991, the commanding general directed that the basic correspondence be permanently filed in his OMPF.

6.  The U. S. Army Reserve AGR Officer/Sergeant Major Continuation Board, which convened on 19 January 1993, did not recommend the applicant’s continuation in the AGR Program. 

7. The applicant’s officer evaluation report (OER) record during the period he was in the AGR Program is as follows:  (NOTE:  Part IV rates the officer’s professionalism in 14 categories with ratings from a high of “1” to a low of “5.”  Part Vb rates the officer’s performance from a high of “Always Exceeded Requirements” (coded below as “Always”) through “Usually Exceed Requirements” (coded below as “Usually”) down to “Usually Failed Requirements.”  Part Vd rates the officer’s potential from a high of “Promote Ahead Of Contemporaries” (coded below as “Ahead”) through to “Promote With Contemporaries” (coded below as “With”) down to “Do Not Promote.”  The asterisk in the Senior Rater’s block indicates applicant’s rating.)

Period			 Part IV	Part Vb	Part Vd	Senior Rater Block

890626 – 900625      12 1s/2 2s	Usually	With		0/1/1*/0/1
900626 – 910625      14 1s		Usually	Ahead		0/0/1*/0/0
910626 – 920625	  13 1s/1 2	Always	Ahead		0/1*/1/0/0
920626 – 921013	  14 1s	Always	Ahead		0/4*/1/0/0

8.  The two 2s in the OER for the period 890626 – 900625 were in the categories “Motivates, challenges and develops subordinates” and “Sets and enforces high standards.”  The one 2 in the OER for the period 910626 - 920625 was in the category “Displays sound judgment.”

9.  On 17 September 1993, the applicant was released the AGR Program and from active duty and was transferred to the U. S. Army Reserve Control Group (Reinforcement).

10.  Army Regulation 600-37 sets forth policy 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 inaccurate is not filed in an individual official personnel files; and ensure that the best interest 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.  In pertinent part, it states that if it is desired to file allied documents with the letter of reprimand, these documents must also be referred to the recipient for rebuttal.  Allied documents must also be specifically referenced in the letter or referral document. 

11. Army Regulation 140-30 prescribes policy and procedures for selecting, assigning, managing and administering U. S Army Reserve soldiers on active duty in the AGR Program.  Paragraph 3-6 states that the Chief, Army Reserve will convene a continuation board to review the records of AGR members for continuation beyond the initial 3-year tour in the AGR Program.  Continuation boards will evaluate the soldier’s quality of performance and potential for future AGR service to determine whether the member should be continued in the AGR Program.  

12.  Around 1994, the applicant applied to this Board for correction of his military records but was informed he must first apply to the Department of the Army Suitability Evaluation Board (DASEB).  
13.	 On 21 April 1994, the Director of Military Personnel Management, Office of the Deputy Chief of Staff for Personnel, recommended that the applicant be permitted to return into the AGR Program without the regulatory one-year delay as exception to policy.  He expected the DASEB to approve the applicant’s request to remove the letter of reprimand and this Board to grant him full restoration of service.  The Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) approved this recommendation.  

14.  The DASEB approved his appeal in part in May 1994.  The DASEB noted that the applicant was not reprimanded for fraud or filing a false TDY claim but that his actions were taken in defiance of his travel authorization knowing full well that he was not entitled to reimbursement for the unauthorized personal expenses.  It is not clear from the DASEB case summary if all of the allied documents mentioned were on his performance fiche at the time, but they are on his restricted fiche at this time.  The “Commander’s Inquiry” mentioned in the letter of reprimand is included.  That document describes more than just TDY irregularities.  The first subject discussed is the applicant’s living with the wife of an enlisted soldier from whom she was not yet divorced.  (She later became the applicant’s wife.)  The DASEB did determine that the general officer letter of reprimand had served its intended purpose and directed that it be transferred from his performance fiche to his restricted fiche.

15.  The applicant returned to the AGR Program on an unknown date and the three OERs he has since received show that he has received 1s in all 14 of the professionalism categories; he was rated as “Always exceeded requirements” and “Promote ahead of contemporaries”; and the senior rater rated him above center-of-mass on all three reports.

CONCLUSIONS:

1.  An injustice was done when the commanding general failed to refer the “Commander’s Inquiry” and other allied documents to the applicant with the letter of reprimand for rebuttal.  Those documents were then filed in his OMPF contrary to regulation. 

2.  The DASEB granted the applicant partial relief by transferring the letter of reprimand to the restricted portion of his OMPF.  That board had determined that the letter had served its intended purpose.

3.	The Director of Military Personnel Management, Office of the Deputy Chief of Staff for Personnel, had recommended that the applicant be permitted to return into the AGR Program without the regulatory one-year delay as an exception to policy and the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) had approved that recommendation.  The recommendation had been made based upon the fact that it appeared the letter of reprimand was unjust punishment.

4.  The Board believes that the injustice of filing this unfavorable information without first referring it to the applicant, along with the fact that the applicant’s subsequent OERs verify the DASEB’s contention that the letter had served its intended purpose, are sufficient reasons for further relief.  The letter of reprimand and all allied documents now on his restricted fiche should be expunged from his OMPF.

5.  There is insufficient evidence to grant the applicant’s request for complete restoration of his military service and pay and allowances.  The continuation board, in determining whether a soldier was qualified to continue to serve in the AGR Program, must have satisfied itself that the soldier consistently demonstrated quality performance and Army Reserve proficiency.  This Board has noted the applicant’s OERs received during the period he was on active duty in the AGR Program.  In an era of downsizing, which was well underway in 1993, the Army has no choice except to retain only the best soldiers, whether they be in the active Army or in the reserve components, whether officer or enlisted.  The Board does not believe that the applicant’s OERs demonstrate that clear record of consistent quality performance that a continuation board must look for.

6.  Army Regulation 15-185 prohibits payment by the Government of expenses of any nature whatsoever voluntarily incurred by the applicant or by any other person in his/her behalf.

7.  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 by 

a.	expunging the general officer letter of reprimand dated 20 October 1991 and all allied documents from the applicant’s OMPF;

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

c.	following completion of the administrative corrections directed herein, a copy of the applicant’s performance and restricted fiche will be forwarded to him for information.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__PB___  __EJA___  __GFG___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Patrick Bogenberger
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-10010/AR1998005437	
SUFFIX		
RECON		
DATE BOARDED	19990210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	134.01	
2.	110.03	
3.	128.15	
4.		
5.		
6.