MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 October 1999                   
	DOCKET NUMBER:   AR1999026277

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Lester Echols		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 the letter of reprimand dated 4 April 1991 be transferred from the performance fiche of his Official Military Personnel File (OMPF) to the restricted fiche.

APPLICANT STATES:  That he believes the reprimand has served its purpose and it is in the best interest of all concerned to transfer it to the restricted fiche.  He provides as supporting evidence letters dated in 1992 from his chain of command requesting transfer of the letter as having served its purpose, his DA Form 2 and 2-1, and two non-commissioned officer evaluation reports (NCO-ER) for the periods ending January 1991 and September 1991. 

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

He enlisted in the U. S. Army Reserve on 30 August 1979.  He was voluntarily ordered to active duty in an active guard/reserve (AGR) status on 30 September 1983 and has remained in that status to the present.  He was assigned to the 365th Engineer Battalion, Schuykill Haven, PA on 14 September 1988 as the Personnel and Administration Center (PAC) supervisor.  He was promoted to Sergeant First Class, E-7 on 17 June 1989.

On 4 April 1991, the applicant received a letter of reprimand for insubordination and misconduct.  He rebutted the letter, stating in effect that a misunderstanding was the cause of the events that led to his receiving the letter.  His commander responded to his rebuttal.  The 79th Army Reserve Command (ARCOM) commanding general directed the letter be filed in the performance section of his OMPF.

On 3 March 1992, the applicant’s supervisor requested the letter of reprimand be transferred to his restricted fiche as, contrary to insubordination, the applicant demonstrated unquestionable loyalty to him, the Adjutant, and to the officers in his rating chain and higher headquarters.  His chain of command provided supporting endorsements and on 7 May 1992, the 79th ARCOM commanding general directed the letter be transferred to his restricted fiche.  (He did not have the authority to do so.)  The recommendation packet was apparently forwarded to this Board.  The Board returned it for completion of a DD Form 149.  On         28 July 1992, the applicant completed the DD Form 149.  In April 1995, the Board returned the application without action as he had not exhausted all administrative remedies (he had not applied to the Department of the Army Suitability Evaluation Board (DASEB)).

For some reason, the applicant’s request was processed no further until 1999, when he resubmitted to the Board after his new unit determined the DASEB was not applicable in his case.  (This was incorrect information).  

The DASEB reviewed the applicant’s case and provided an advisory opinion at the Board’s request (SEE ATTACHED).  The DASEB opined that he had not proven his case and recommended his application be denied.  The DASEB noted that while the applicant had received numerous awards and decorations, there was evidence in his record that there were recurrences of insubordination, specifically mentioning his NCO-ERs for the periods ending July 1996 and May 1997.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He responded, stating that the negative NCO-ER he received in mid-1996 is under appeal.  The events associated with that NCO-ER are not related to the reprimand which forms the basis of his transfer request.  He believes the DASEB improperly considered that NCO-ER and he considers it improper for the Board to consider it now as it was not in his file at the time of his original request. He believes his request would have been approved if it had been forwarded to the proper review board in 1992 and asks that this Board consider the matter as if it were the original request.

Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Only letters of reprimand, admonition or censure may be the subject of an appeal for transfer to the restricted fiche.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Appeals submitted under this provision will normally be returned without action unless at least one year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

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, 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 or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board does not agree with the applicant’s contention that his request would have been approved if it had been forwarded to the proper review board in 1992.  The regulation states appeals of letters of reprimand will normally be returned without action unless at least one year has elapsed since the imposition of the letter.  The applicant’s letter of reprimand was imposed on 4 April 1991;  his supervisor’s request to transfer the letter is dated 3 March 1992.  Although the related endorsements are dated just after the one-year anniversary of the imposition, the basic letter is not.  

3.  The intent of the one-year requirement is to allow enough time to pass for a pattern of behavior to develop to indicate whether or not the incident that led to the imposition of the letter was an isolated instance in an otherwise good record. It is not the norm for such a request to be granted as soon as the one-year point has passed.  It is difficult for the recipient of such a letter to obtain the substantial evidence required to prove that the intended purpose has been served in that short a time.  It is not unusual for the DASEB or this Board to require as long as five years or more to pass before concluding that such substantial evidence has been provided.  The Board therefore concludes that had it processed his request in 1992 it would have denied his request due to a lack of substantial evidence to prove its intended purpose was served.  

4.  In the applicant’s case, his pattern of behavior has shown that the intended purpose of the letter of reprimand has not been served.  While the applicant states that the negative NCO-ER he received in mid-1996 is under appeal, he also received a negative report for the period May 1997.

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

__jhl___  ___kak__  __le____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026277	
SUFFIX		
RECON		
DATE BOARDED	19991014	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134.01	
2.		
3.		
4.		
5.		
6.