MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 December 1999                  
	DOCKET NUMBER:   AR1999012012

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Christopher J. Prosser		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:  Reconsideration of his previous request to correct his records by expunging a 1985 letter of reprimand (LOR).

APPLICANT STATES:  That he had reasonable explanations for not applying to the Board earlier and that the failure to timely file should have been excused.  He contends, in effect, that the regulation was not followed in that he was not informed of and did not know about the Criminal Investigation Division (CID) report and could not, therefore, prepare a proper rebuttal.  He submits a copy of the CID investigation, an undated memorandum from a major who identifies himself as the applicant’s executive officer at the time and a 3 September 1997 letter from a retired master sergeant who was then the Company First Sergeant. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to 
reflect the Board's original consideration of his case on 24 June 1999 (COPY ATTACHED).

The applicant’s submissions constitute new evidence and argument that require Board consideration.

The major writes that he was tasked to investigate the incident and that his investigation “was inconclusive at best.”  He is convinced that the applicant should not have received the LOR.  He relates that “I, like [the applicant] at the time thought the unfavorable information was the Letter of Reprimand.”  No other documentation was presented to the applicant.  He believes that the applicant was denied due process in that he could not prepare a proper rebuttal.

The Company First Sergeant writes that he was thoroughly briefed on all of the facts involved in the case, and that the LOR was imposed because the chain of command was embarrassed that they had investigated a non-event.  He states that the applicant was accused of having an affair with a married woman.

The CID report was furnished to the applicant under the Privacy Act in November 1994.  That investigative report comprises approximately 20 pages, including the applicant’s own three page typewritten sworn statement that was taken after he had been informed that he was suspected of kidnapping, attempted rape and aggravated assault. 

In January 1994 the applicant applied to have the LOR removed from his record.  He argued, as he had in an earlier appeal, that the LOR was deficient in that it did not contain words to the effect that the reprimand was administrative in nature and not as the result of UCMJ punishment.  He also argued that the reference to a previous “similar incident in June 1983’ constituted a violation of the regulatory provision that “anonymous communications would not ” filed in a soldiers records. 

Army Regulation 600-37 (unfavorable information) provides in pertinent part, that administrative letters of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the soldier.  The letter must be referred to the recipient and the referral must include and list applicable portions of investigations, reports or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.  Letters of reprimand may be filed in a soldier's OMPF only upon the order of a general officer level authority and are to be filed on the performance fiche.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached.  Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7. Letters of reprimand intended for filing in the Military Personnel Records Jacket (MPRJ) may be retained for no more than 3 years and must state the length of time they are to be retained.  Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to the DASEB to relocate a reprimand, admonition or censure (normally for soldiers in pay grade E-6 and above) are based on proof that the intended purpose has been served and that transfer to a restricted fiche would be in the best interest of the Army.  The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed.  If the appeal is denied the DASEB letter of denial will be filed on the performance fiche, the appeal itself and any associated documents will be filed on the restricted fiche.  Otherwise this Board may act in accordance with Army Regulation 15-185 and the soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.

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.  The LOR contains two regulatory deficiencies.  As noted in the advisory opinion associated with the original case, it did not contain wording to the effect that it was imposed as an administrative reprimand rather than as UCMJ punishment.  It also did not list the evidence supporting the reprimand.

2.  The first is a minor administrative deficiency.  It did not result in an injustice to the applicant.  There is no wording to suggest that the reprimand was associated with UCMJ punishment. 
  
3.  The omission of the list of evidence against the applicant (the CID report) is more significant.  However, it does not constitute a material error in that it did not deprive the applicant of the opportunity for viable rebuttal.  This is evidenced by the fact that he still has not offered one.  His assertion that he was unaware of the investigation is incredible when, in fact, he had been warned or his right by the investigators and offered his own sworn statement.

4.  Furthermore, the Board notes that even subsequent to his receipt of the CID report in 1993 he based an appeal upon the relatively weak omitted wording and the “anonymous communications” arguments.  This indicates that the applicant was unwilling or unable to confront the true nature of the indecent assault incident.

5.  The statements and opinions of the executive officer and the first sergeant are of no probative value.  The former claims to have investigated the case.  However, he failed to discover a concurrent CID investigation.  The latter was under the impression that the applicant was being charged with adultery where as the LOR clearly state “indecent assault.”

6.  Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3-year time limit.  Although the failure to timely file was cited in the original decision a reasonably alert reading of that document would reveal that the merits of the case were considered.  The Board has never denied an application simply because it was not submitted within the required time.  

7.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

8.  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

__GDP__  ___CLG_  __CJP___  DENY APPLICATION

						Loren G. Harrell
						Director

	AC95-05083A
AR1999022689	
		
RECON		
DATE BOARDED	19991229	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.02	
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