MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:       19 November 1998       
	DOCKET NUMBER:   AC98-09810

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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)

APPLICANT REQUESTS:  In effect, removal of a letter of reprimand and an elimination action from his official military personnel file (OMPF).

APPLICANT STATES:  He states that his right to due process was violated.  His request to appear before a board of inquiry in October 1995 was not granted.  The action to reprimand him was handled carelessly and indifferently, and he was not shown the respect to appear before senior field grade officers to receive or respond to the letter of reprimand.  The applicant submits a certificate and a citation awarding him the Joint Service Achievement Medal for his outstanding achievement as a maintenance office for Joint Task Force Proven Force from 
7 January 1991 to 10 March 1991.    

COUNSEL CONTENDS:  In effect, counsel states (COPY ATTACHED) that the applicant’s wearing of an unauthorized Bronze Star Medal (BSM) on his uniform for an official photograph was an honest mistake, that there was no intent on his part to defraud the Army, nor a failure to obey orders or regulations, that he was not derelict in the performance of his duties.  Nor was his conduct unbecoming of an officer and a gentleman.

Counsel states that the applicant was never interviewed during the conduct of an investigation into the wearing of an unauthorized decoration, that he made a mistake in relying of the expertise of others [who informed him that his photograph was consistent with information in his officer records brief (ORB)], and when informed that this was not so, he immediately took action to submit a new photograph with all his correct ribbons displayed.  Counsel states that there was a two year delay in the discovery of the error, that appropriate officials did not review his photograph for accuracy and completeness when it was received at Ordnance Branch, and had they noticed the problem, the applicant would have been notified in January 1992.  Counsel states that when he was contacted [by branch] requesting that he submit the certificate authorizing the BSM, an official of the Adjutant General Branch at Fort Lee discovered he was authorized the Southwest Asia Bronze Star (SWABS) instead of the BSM. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was appointed a second lieutenant in the Army Reserve on 
30 July 1982, was promoted to Captain on 1 May 1986, and to Major on 
1 May 1994.  He has been assigned to various locations throughout the world, to include Fort Lee, Virginia, Germany, Turkey, and Fort Hood, Texas.  He has completed the Ordnance Officer Advanced Course, among other military courses, and has a masters degree in public administration.  The applicant has 
received numerous awards including the Meritorious Service Medal in 1991, the Army Commendation Medal in 1990, the Army Achievement Medal in 1984 and again in 1986, and the Southwest Asia Service Medal with one bronze service star. 

A 21 September 1994 CID report of investigation established probable cause to believe that the applicant committed various offenses, i.e., dereliction of duty, conduct unbecoming an officer, wearing an unauthorized award; resulting from him wearing an unauthorized BSM on his uniform for an official photograph.  The report revealed that an officer in the PERSCOM Ordnance Branch noted, when reviewing the files of eligible officers for the command and general staff college selection board, that the applicant was wearing the BSM; however, there was no authorization for the award in his OMPF.  The applicant had been assigned to Joint Task Force Proven Force during Operation Desert Storm, but his rating officer, an Air Force colonel, stated that the applicant should have been authorized the Joint Service Commendation Medal or the Joint Service Achievement Medal, but not the BSM.    

On 14 October 1994 the applicant received a letter of reprimand from the commanding general of the Combined Arms Support Command at Fort Lee, Virginia, for wrongfully wearing on 27 January 1992 an unauthorized decoration, a BSM, for an official DA photograph.  That official stated that that action was aggravated by the fact that the photograph was submitted to the promotion board which selected him for Major.  He also informed the applicant that the action was administrative and not punishment under the UCMJ, and that he intended to file the reprimand in his OMPF.  The applicant acknowledged receipt of the letter on 14 October 1994.  

On 18 October 1994 the applicant requested that the letter be filed in his military records jacket rather than his OMPF.  He stated that while the wearing of the ribbon was inexcusable, there was no intent to defraud.  The applicant stated that there was mitigating circumstances surrounding the act that was not disclosed by the investigation.  The investigation was sloppy and may have been maliciously negligent, with no attempt to discover the truth.  He stated that he was informed in March 1994 that his photograph and ORB were reviewed and that he was authorized everything in his photograph; however, in June of that year after a request to submit the certificate authorizing the BSM, he spoke with an official at his adjutant general office and discovered that he was authorized the Southwest Asia Bronze Star (SWABS) instead of the BSM, and he took a corrected photograph.  He notified the branch officer of his mistake.  He questioned the unsworn statement made by that branch officer that unauthorized medals may have influenced his promotion, and questioned the validity of the summary of telephone conversation between an investigator and his Air Force rater.  He also stated that had the Fort Lee investigators contacted the adjutant general officer records section during the course of the investigation, an accurate report would have ensued, showing that he followed established procedures to verify the accuracy of his photograph.  He stated that he made a regrettable mistake.  

On 31 October 1994 the applicant’s brigade commander stated that he had reviewed the applicant’s rebuttal to the letter of reprimand and recommended that the letter be filed in his OMPF.  That official stated that the applicant wore the BSM without authorization, that the applicant claimed, after seeing the annotation “SWABS-01” on his ORB, that he mistook this as authorization for a BSM and made no apparent effort to determine the validity of the entry.  He stated that the applicant’s statement that there was no intent to defraud did not absolve him of his inexcusable carelessness and incompetence in wearing the award; and that his efforts to shift the blame for his own ineptness were weak and without merit.  That official stated that the applicant had the responsibility to ensure that his record was correct.   

On 9 November 1994 the commanding general of the Combined Arms Support Center at Fort Lee directed that the letter of reprimand be filed permanently in his OMPF in accordance with Army Regulation 600-37, paragraph 3-4b.

On 20 September 1995 PERSCOM initiated elimination action against the applicant under the provisions of Army Regulation 635-100, because of misconduct, moral or professional dereliction.  On 2 May 1996 PERSCOM terminated that elimination action, stating however that documents in his OMPF which directed him to show cause for retention would remained in his OMPF and would only be removed through appeal.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the DA Suitability Evaluation Board (DASEB).  The DASEB concluded that the BSM, as part of his promotion file, may have improved his chances for selection to Major over other qualified officers.  The DASEB also stated that the applicant did receive due process in that he provided a copy of the rebuttal that went through the chain of command, that it was reviewed, considered and a determination made.  Additionally, he was considered for elimination and provided a rebuttal that was sufficient to have PERSCOM terminate that action.  The DASEB notes that the materials submitted by the applicant’s legal counsel included a listing of UCMJ articles from the offenses cited in the CID report; however, the letter of reprimand was an administrative action and inclusion of evidence addressing UCMJ action was irrelevant.  The DASEB also stated that it was the applicant’s responsibility to ensure his own records were correct.  The DASEB recommended that his request be denied.
Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military
operations against an armed enemy.  The primary requirement for award of this, or any decoration, is that a formal recommendation must be prepared and administratively entered into official military channels by someone having witnessed or with knowledge of the act, achievement, or service to be honored.
The award must be announced or published in orders.  A certificate will be presented with the award.

Paragraph 1-31 of the aforementioned regulation states, in effect, that U.S. military decorations will be presented with an appropriate air of formality and with fitting ceremony.

Service (campaign) medals and service ribbons denote honorable performance of military duty within specified limited dates in specified geographical areas.  Army Regulation 600-8-22 lists those areas and inclusive dates.

The Southwest Asia Service Medal (SWASM) was established by Executive Order 12754, 12 March 1991 and is awarded to all members of the Armed Forces serving in Southwest Asia on or after 1 August 1990 to a date to be determined.  Members of the Armed Forces of the  United States serving in Turkey between 17 January 1991 and 11 April 1991 will also be eligible for the award.  One bronze service star will be worn on the suspension and service ribbon of the SWASM for participation in each designated campaign.

Army Regulation 640-10 sets forth the basic authority for filing of documents in the OMPF (official file).  Table 4-1 of that regulation provides, in pertinent part,  that administrative letters of reprimand or admonition of a nonpunitive nature would be filed on the performance fiche of the OMPF only if the provisions of Army Regulation 600-37 had been complied with.

Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF.  Paragraph 3-4 of that regulation provides, in pertinent part, that a nonpunitive letter of reprimand or admonition would be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.

Army Regulation 640-10 also states, in effect, that unfavorable information of which the member concerned had prior official knowledge will be filed in his OMPF. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant wore an unauthorized BSM for an official photograph in 1992, for which he received a letter of reprimand.  Elimination action was initiated, albeit later terminated.  Both the letter and the elimination action were directed to be filed in his OMPF in accordance with applicable regulations.  This was proper.  
2.  Neither the applicant nor his counsel dispute the fact that he wore an unauthorized BSM for an official photograph, both contending, however, that it was an honest mistake.  The applicant, in his rebuttal to the letter of reprimand, stated that he made a regrettable mistake and that the wearing of the ribbon (BSM) was inexcusable, but there was no intent to defraud.  The Board notes, however, that the applicant received various awards prior to 1992, accompanied by an appropriate order authorizing the award and/or the accompanying certificate.  It is difficult for this Board to believe that the applicant, with his rank and years of service, would deign to wear a ribbon denoting award of a medal as prestigious as the BSM, without having received an order or a certificate authorizing the award, or without having received the award in an appropriate ceremony, which is not only customary in the military, but directed by regulation. The applicant’s credibility is further stretched by his implication that he mistook the award of a bronze service star to a campaign medal, i.e., SWABS-01 as indicated on his ORB, for the BSM.  

3.  The applicant’s rights were not violated.  He was presented the letter of reprimand, to which he responded.  He was also aware of the initiation of the elimination action against him.  The applicant may have made an honest mistake, as he and counsel states.  Nevertheless, it was his responsibility and no one else’s to ensure that his records were correct.  The fault rests with him that he did not do so.  The letter of reprimand was properly imposed and both it and the elimination action correctly filed in his OMPF.  

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
  
6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__FNE___  ___TAP__  __BJE_  DENY APPLICATION

						Loren G. Harrell
						Director