MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            21 July 1999      
	DOCKET NUMBER:   AR1999018098

	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. Curtis W. Barbee		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Robert G. Hinkle		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:  That a letter of reprimand be removed from his official military personnel file (OMPF), he be promoted to Captain and retained on active duty.  

APPLICANT STATES:  The letter of reprimand does not contain all the facts, but simply states that he assaulted his wife.  The Fort Lewis family advocacy team determined that the assault was mutual, and initiated by his wife.  A district court determined that he acted in self defense and recommended charges be dropped. The family advocacy team closed its case with no further action required.  The letter does not indicate that he was initially the victim, and charges him with grabbing his wife’s arm while he was being struck, nor does the letter show that the civilian court dropped the case and charges.  The initiator of the letter of reprimand even indicated to the Brigade commander that he might have done the wrong thing.  The letter is misleading, deceptive, and incomplete, accusing him of a crime he did not commit. 

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

The applicant was appointed a second lieutenant as a Reserve commissioned officer on 30 July 1993.  He completed training as an air defense artillery officer and was assigned to an air defense artillery battery in Korea.  The applicant has received six officer evaluation reports beginning in 1994 until November 1998.  His performance has been rated as poor (do not promote) to outstanding (must promote – should have already been promoted [from first lieutenant to Captain]).
He has received two awards of the Army Achievement Medal and one award of the Army Commendation Medal.

On 21 August 1995 the applicant received a memorandum of reprimand from the Deputy Commanding General of I Corps and Fort Lewis, Fort Lewis, Washington, for grabbing his wife’s arm and slapping her in the face in the parking lot of a public facility in South Tacoma, Washington on 1 July 1995.

The applicant responded to the memorandum of reprimand on 24 August 1995 by stating that he accepted full responsibility for his misconduct and for using poor judgment in handling the situation.  He requested that the memorandum be filed locally in his military personnel records jacket.

The applicant stated that the situation started as an argument, his wife got very angry and enraged with him and began hitting and scratching him on the face and shoulders.  In an effort to calm her down, he slapped her once across the face, leaving no temporary or permanent bruises or injuries of any kind.

The applicant went on to say that he knew it was wrong to slap her, that he did show poor judgment and that he accepted personal and professional responsibility for his actions.  He stated that he had never before abused his wife. He also stated that his action was a complete aberration to his personality and personal standards of conduct, and that it was a completely isolated incident, which did not compromise his leadership.  After reviewing the case the civilian court recommended that the case be dismissed provided no other actions occurred.  He stated that he had served his country for eight years without a negative mark of any kind on his record.  He has taken all personal actions available through his chain of command and Army social services to ensure no future occurrences, and he and his wife have gone through counseling.  

On 1 November 1995 the official who issued the memorandum of reprimand stated that he had considered the circumstances surrounding the reprimand, the alternative non-punitive measures, the applicant’s response, and the recommendation of the officer’s chain of command; and directed that the reprimand be filed permanently in his OMPF and in the permanent section of his military personnel records jacket.

On 28 November 1995 the family case management team for spouse abuse at Madigan Army Medical Center in Tacoma reviewed and closed the applicant’s case due to successful completion of treatment.

A copy of a docket from district court no. 1, Pierce County, Washington, shows that the charge against the applicant of 4th degree assault was dismissed.

In a 10 October 1996 memorandum, the commander of the 35th Air Defense Artillery Brigade, an Army colonel, stated that he had discussed both the alleged misconduct and the applicant’s potential for command with the general officer who had issued the memorandum of reprimand, and that he was left with the impression that that officer wasn’t sure that he had done the right thing with regard to the applicant; and when it became clear that the applicant could soldier, he decided, in consultation with that general officer, to promote him to first lieutenant.  The brigade commander went on to say that the applicant and his wife had worked out their differences through counseling, and had decided to remain married.  He stated that although there was no excuse for the applicant’s alleged behavior, he believed that it was a young person’s mistake in dealing with the very significant cultural and societal differences he and his wife were working their way through at the time.  The brigade commander stated that the reprimand had served its purpose and should be transferred to the applicant’s restricted fiche. 

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the DA Suitability Evaluation Board (DASEB).  That board granted partial relief by transferring the memorandum of reprimand from the performance fiche to the restricted fiche.  That board indicated that that action was not to be considered retroactive, nor did it constitute a basis for referral to a special selection board.  The board noted that the applicant did not provide sufficient evidence to show that the reprimand was unjustly given due to the circumstances; and that the applicant contradicted his own rebuttal where he acknowledges and takes responsibility for his actions and poor judgment.  The evidence he presented did not support his argument that the actions did not happen.  The board found that the applicant’s record showed an inconsistent level of performance, and as a result of his second non-selection for promotion to Captain he would be released from active duty.  The board opined that the applicant had provided sufficient evidence and sufficient time had elapsed to warrant the transfer action.   

The advisory opinion was furnished the applicant on 5 May 1999 for his information and possible rebuttal.  He has not responded.

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.  Letters filed in the OMPF will be filed on the performance portion.  That regulation states that only letters of reprimand may be the subject of an appeal for transfer to the restricted fiche.  Appeals approved [by the DASEB] will result in transfer of the document from the performance record to the restricted portion of the OMPF.  However, the transfer will not normally serve as the sole basis for promotion reconsideration by a special board. 

Army Regulation 600-8-104 provides, in pertinent part, that administrative letters of reprimand will be filed on the performance portion of the OMPF.  That regulation states that once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from a fiche or moved to another part of the fiche unless directed by the Army Board for Correction of Military Records, or the DASEB.  Documents designated for transfer from the performance of service fiche will be put on the restricted fiche, if authorized. 

Army Regulation 600-8-104 provides, in pertinent part, that the R fiche is used for historical data that that may normally be improper for viewing by selection boards or career managers.  Its release is highly controlled.  The R fiche is intended to provide an unbroken historical record of an individual’s service while protecting the interests of both the soldier and the Army.

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 himself has admitted his misconduct, stated that he knew it was wrong to slap his wife, that he used poor judgment, and that he accepted personal and professional responsibility for his actions.  His conduct was unprofessional and not in keeping with that expected of an Army officer.  The memorandum of reprimand was deserved, and the decision by a general officer to direct that it be filed in his OMPF correct.  That officer, in making his decision to do so, stated that he had considered the applicant’s response and the recommendations of the officers in the applicant’s chain of command. 

2.  The Board notes that the applicant’s former brigade commander, in support of the applicant, had recommended that the memorandum of reprimand be transferred to the applicant’s restricted fiche, but not removal of the memorandum from his OMPF.  The applicant’s memorandum of reprimand has been transferred from the performance fiche of his OMPF to the restricted fiche by the DASEB.  The Board agrees with the advisory opinion from the DASEB that the transfer action is not to be considered retroactive and does not constitute a basis for consideration by a special selection board.  No further action is considered necessary by this Board.

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

4.  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.

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

___cwb__  ___jma__  __rgh___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018098	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990721	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 126.02		
2.		
3.		
4.		
5.		
6.