APPLICANT REQUESTS:  That the general officer letter of reprimand he received in January 1998 for deviating from the standard of practice in prescribing medicine be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  The wrong documents are filed in his OMPF, improper procedures were followed, he was never notified of the filing decision, and his rebuttal to the reprimand was not reviewed by the commanding general (CG).  As supporting evidence, the applicant provides e:mail correspondence that states his final rebuttal was turned in to the Judge Advocate General’s (JAG) office on 12 February 1998.  In his letter to the Department of the Army Suitability Evaluation Board (DASEB), he stated that his commanders did not review any rebuttal at all and that this is supported by the fact they signed their recommendation to the CG on 12 January 1998, the date the letter of reprimand was written.  

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

After 4 years of prior enlisted service, the applicant was ordered to active duty on 17 June 1988 in pay grade 0-3 in specialty 62A, Emergency Medicine Intern.  He was promoted to Major on 19 June 1992.

On 12 January 1998, the CG gave the applicant a letter of reprimand for, on at least four separate occasions, improperly prescribing 50 tablets of either Tylox or Roxicet for patients who reported to the emergency room for relatively minor complaints.  He then retrieved the prescription from them, substituted another prescription or arranged for alternative treatment, and neither returned the Tylox or Roxicet to the pharmacy nor properly disposed of the prescription.  The CG stated he was considering filing the letter in the applicant’s OMPF and gave him five days in which to present matters in extenuation and mitigation.

On 30 January 1998, the applicant rebutted the letter by stating, basically, he was not guilty of either theft or possession of a controlled substance.  

On undated endorsements, the applicant’s company and troop commanders stated they carefully considered all the facts and circumstances surrounding the reprimand and recommended it be filed in his OMPF.

On 28 February 1998, the CG stated he carefully considered all the facts and circumstances surrounding the reprimand, also considered alternative           non-punitive measures, and directed the reprimand be placed in his OMPF.
On 10 July 1998, the DASEB denied the applicant’s request to remove the letter of reprimand.

Army Regulation 27-10 provides that the officer imposing non-judicial punishment, to include written letters of reprimand, was to determine whether the non-judicial punishment was to be filed on the individual’s restricted or performance fiche.  In making a filing determination, he must weigh carefully the interests of the soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust and responsibility.  In this regard, the imposing commander should consider the soldier’s age, grade, total service and the fact that the filing decision is not subject to direct appeal.  The interests of the Army are compelling when the record of non-judicial punishment reflects …substantial breach of military discipline.  In such cases, the record should be filed in the performance fiche.

Army Regulation 600-37 provides policy and guidance for the filing of unfavorable information in an individual’s official files.  In pertinent part, it states that only a general officer may direct that a letter of reprimand be filed in an individual’s OMPF after it has been referred to the recipient concerned for comment.  The referral will include references to the intended filing of the letter.  The letter will be forwarded for inclusion in the performance portion of the OMPF only after considering the circumstances and alternative non-punitive measures.

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

1.  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.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The letter of reprimand is dated 12 January 1998.  The applicant’s rebuttal is dated 30 January 1998; it may very well have been turned in to the JAG office on 12 February 1998.  His company and troop commander’s recommendations are in fact undated.  The applicant may be confused because of the format of an endorsement.  The date in parentheses, on the office symbol line, is the date of the original correspondence (in this case, the date of the letter of reprimand).  The date the endorsements were signed should have been typed on the endorsing command’s office line.

3.  The CG’s endorsement directing filing of the letter in the applicant’s OMPF is dated 28 February 1998.  This is after the date, 12 February 1998, the applicant claims he turned his rebuttal in to the JAG office.  It states he considered all the facts and circumstances surrounding the case.  A presumption is made that this included the applicant’s rebuttal.

4.  Although the CG states in the letter of reprimand that the applicant will be notified of the final action, Army Regulation 600-37 does not require the that applicant to be so notified. 

5.  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

                       DENY APPLICATION

						Loren G. Harrell
						Director