PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           17 December 1998                   
	DOCKET NUMBER:   AC98-06622

	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:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Kenneth L. Wright		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, in effect, the removal from his records of the memorandum of reprimand he received in 1991; retroactive promotion to Master Sergeant E-8; enrollment and attendance in the Sergeants Major Academy (SMA) Resident Course; and that he receive the first available National Guard Bureau, Army National Guard Title 10 Active Guard/Reserve (AGR) Sergeant Major E-9 position.

3.  The applicant states, in effect, that he made numerous attempts through his chain of command to have the memorandum removed from his records.  He never received any official answer.  His first appeal attempt was directed to the originator of the letter.  He was verbally told that the answer to his petition was “no” and that if he pressed the matter any further he would be involuntarily removed from the AGR program.  He states the memorandum was improperly filed in his Title 10 AGR Tour File and that it was used expressly to ensure that he would not be promoted.  His Non-Commissioned Officer Evaluation Reports (NCO-ERs) show that his duty performance has always been good, in fact, exceptional.  He submits three statements to show that he could not have been involved in the incidents that were the basis of the memorandum of reprimand.

4.	The applicant’s military records show that he had prior enlisted service in the Regular Army from 10 August 1964 – 9 August 1967.  He served in the U. S. Army Reserve until August 1970.  He enlisted in the Army National Guard on       5 October 1983 and served one AGR tour.  He was released from that tour in December 1986 but returned to the AGR program in 1987.  

5.	The applicant’s NCO-ER for the period June 1988 – May 1989 shows that, in five areas of values/NCO responsibilities, he was given two “excellence” and three “success” ratings.  Out of possible ratings of “among the best,” “fully capable,” and “marginal,” his rater rated his overall potential for promotion as “fully capable.”

6.	The applicant’s NCO-ER for the period August 1989 – July 1990 shows that he was given four “success” and one “excellence” ratings.  His rater rated his overall potential for promotion as “fully capable.”

7.	The applicant’s NCO-ER for the period August 1990 – July 1991 shows that he was given four “success” and one “excellence” ratings.  His rater rated his overall potential for promotion as “among the best.”

8.	On 24 July 1991, the applicant was given a memorandum of reprimand from the Deputy Director, Army National Guard.  The applicant rebutted the memorandum (the rebuttal is not available).  The Deputy Director considered all matters presented and then directed the memorandum of reprimand and the applicant’s rebuttal be permanently filed in the performance fiche of his Official Military Personnel File (OMPF).
9.	The applicant’s NCO-ER for the period August 1991 – July 1992 shows that he was given three “success” and two “excellence” ratings.  His rater rated his overall potential for promotion as “among the best.”

10.  The applicant’s NCO-ER for the period August 1992 – July 1993 shows that he was given three “success,” one “excellence” and one “needs some improvement” ratings.  His rater rated his overall potential for promotion as “fully capable.”

11.  The applicant’s NCO-ER for the period August 1993 – December 1993 shows that he was given three “success” and two “excellence” ratings.  His rater rated his overall potential for promotion as “among the best.”  These were the same ratings he received on his NCO-ER for the period January 1994 – July 1994.

12.  Apparently, the applicant petitioned for removal of the memorandum of reprimand from his file in 1994.  The only document available is an Information Paper outlining guidance from Army Regulation 600-37 that states appeals to remove letters of reprimand will not be sent to the Department of the Army Suitability Evaluation Board (DASEB), but rather the individual who first directed the filing of the letter or a higher level commander was the authority.

13.	A memorandum from the Army National Guard Command Sergeant Major to the Director, Army National Guard, dated 6 February 1996, recommended that the Director remove the letter from the applicant’s records.  A note from the Office of the Executive, Army National Guard, dated 12 February 1996 noted that the Director concurred with the removal of the letter but that the authority lay with the Office of the Deputy Chief of Staff for Personnel, DASEB.

14.	On 3 March 1997, the National Guard Bureau, Office of the Inspector General (IG) responded to an IG Action Request from the applicant.  It noted that apparently the letter of reprimand should not have been filed in his tour file and was removed from his tour file.

15.  On 4 March 1998, the DASEB responded to a request from the applicant for retroactive promotion, attendance at the SMA Resident Course and assignment as an AGR SGM by returning it without action.  The DASEB noted that it was constituted to consider requests to have reprimands removed from a soldier’s OMPF or transferred to the restricted portion of that file and that the reprimand he received had been removed from the personnel file that would be seen by Guard Bureau selection boards.

16. The National Guard Bureau’s Tour Advisory Review Panels were “advisory” lists provided for use when considering an individual for tour continuation, reassignment and promotion potential.  Likewise, the Enlisted Promotion/Tour Continuation Board Order of Merit Lists were used when considering an individual for reassignment and promotion.

17.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau.  The opinion noted that there is a major problem with Army Regulation 600-37 in that, for Army National Guard enlisted soldiers, the Military Personnel Records Jacket (MPRJ) is also the OMPF.  The Title 10 Tour Management File is essentially the same as a Career Management Individual File (CMIF).  Although the Guard does not use the performance fiche of the OMPF, per se, the Deputy Director’s intent was to file the letter permanently in the soldier’s record and that it not be concealed from view.  The Director, Army National Guard decides what is contained in the Tour Management File and what will go to promotion boards, including relevant derogatory information.  His only chance to get the document removed from his record lies with the DASEB.

18.  The applicant rebutted this opinion.  He stated he contacted the DASEB and they returned his request without action.  He disagreed that the letter was properly filed.  The Army National Guard uses the tour continuation file for boarding soldiers for promotion.  The (active) Army used to do the same type of pseudo file system for boards until it was ruled that such a system was not favorable to soldiers boarded for promotion.  The letter was previously used and will continue to be used to ensure that he will not be promoted.  The letter has served its purpose and it is in the best interest of the Army to remove it.

19.  Army Regulation 600-37 establishes policies and procedures for the resolution of unfavorable information and to ensure that unsupported or unresolved unfavorable information, which may prejudice the individual’s reputation or future in the military service, is not filed in an individual’s official personnel file.  In pertinent parts, it defines official personnel files as the OMPF, the CMIF, and the MPRJ; and that a letter may be filed in the OMPF upon the specific direction of any general officer.

CONCLUSIONS:

1.	The statements the applicant provides which he claims show he could not have been involved in the incidents upon which the memorandum of reprimand are based are insufficient.  Two of the statements are undated; one is dated 4 years after the events.  The Deputy Director directed the permanent filing of the memorandum of reprimand in the performance fiche of the applicant’s OMPF after considering his rebuttal.

2.	The National Guard Bureau’s Tour Advisory Review Panels were “advisory” lists provided for use when considering an individual for tour continuation, reassignment and promotion potential.  Likewise, the Enlisted Promotion/Tour Continuation Board Order of Merit Lists were used when considering an individual for reassignment and promotion.

3.  This Board believes that when the Deputy Director directed the memorandum of reprimand be filed on the performance fiche of the applicant’s OMPF, his intention was to have it filed where it was available for view by promotion boards and career management personnel, as it would have been had he been a Regular Army soldier on active duty.

4.  This Board does not believe that, absent the memorandum of reprimand, the applicant would have been immediately promoted to Master Sergeant E-8 upon first attaining eligibility.  His NCO-ERs show that he was primarily a “success” soldier, not an “excellence” soldier.  Absent the memorandum of reprimand, this Board believes he would have continued to have received “solid performer – qualified and responsible” standings.  In today’s era of downsizing, that is not always good enough for promotion.

5.  This Board does believe that the Director of the Army National Guard, in February 1996, intended to remove the letter of reprimand from the applicant’s file, taking the advice of his Command Sergeant Major, given on 1 February 1996 that the letter had served its purpose.

6.  Although the advisory opinion notes that the DASEB should rightfully consider this case for possible removal of the memorandum of reprimand from the applicant’s records, this Board feels that there has already been too much confusion as to who the proper authority for this action is.

7.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing the memorandum of reprimand documents from the OMPF of the individual concerned and, in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative correction directed herein, the proceedings of the Board and all documents related to the subject memorandum of reprimand be returned to the Board for permanent filing.

2.  That the records of the individual concerned be made available to the next scheduled Standby Advisory Board for promotion consideration to MSG under the 1996 (if that original promotion selection board was held in or after February 1996), 1997 and 1998 criteria, as applicable, after the above corrections are made.

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

BOARD VOTE:  

KLW____  MHM____  KLW____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-06622	
SUFFIX		
RECON		
DATE BOARDED	19981217	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	134.01	
3.		
4.		
5.		
6.