MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  15 August 2000
	DOCKET NUMBER:  AR2000037008

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		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 his records be corrected to allow for full reinstatement onto active duty with all back pay and allowances; removal of a GOMOR (General Officer Memorandum of Reprimand); and the removal of a negative rating on his OER (Officer Evaluation Report). 

APPLICANT STATES:  Applicant deferred all statements to his counsel.

COUNSEL CONTENDS:  That the applicant merely played a joke on a fellow soldier, which misfired.  He outlines the applicant’s splendid career, contends he received overly harsh treatment, and pleads for one last chance.  He contends the applicant’s enlisted service kept him from receiving his full complement of due process rights  (i.e., had he been an officer with sufficient time in grade, he would have been entitled to a show cause board with its full complement of due process rights).  He further contends that the results of a “lie detector” show he had no evil intentions whatsoever.  His 11-page appeal made several references to remarks by a former Chairman of the Joint Chiefs of Staff.  He provides 5 letters of support.  He furnishes copies of 10 citations (1 as an officer and 9 as an enlisted man).  In addition, he provides copies of his OER’s, NCO Evaluation Report, Officer Record Brief, and the denial of a short-term extension, which were matters of record.  

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

During the period 3 July 1986 to 30 January 1996, the applicant served on active duty in an enlisted status.

On 1 February 1996, he was appointed as a commissioned officer in the Army Reserve with concurrent call to active duty, in military occupational specialty 35D (Tactical Intelligence).

In February 1998, the applicant unlawfully changed the PIN (Personal Identification Number) and used the personal credit card of a fellow officer.  

Although not in the available records, evidence shows a GOMOR was issued for a lapse in integrity and judgment.

On 31 January 1999, he was honorably released from active duty under Army Regulation 600-8-24, paragraph 2-7, based on the expiration of his term of service.  His report of separation indicates he had completed 12 years, 6 months and 28 days of creditable service.

Army Regulation 600-8-24 (Officer Transfers and Discharges) indicates, in pertinent part, that an officer who has completed his or her active duty commitment to include service obligations will be released from active duty.

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 (Official Military Personnel File) 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, 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 Department of the Army Suitability Evaluation Board (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 regulations.

Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander’s Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

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 applicant admitted to the multiple unlawful acts amounting to grand larceny, but justifies them as a joke.

2.  The Board believes the leniency shown by his receipt of an administrative admonition in the form of a GOMOR was based on his otherwise exceptional service.

3.  There is no error of injustice in the contested OER, which would justify the removal of any part of the report.

4.  He has not shown he was improperly separated from active duty, nor does he provide a valid reason for reinstatement.  The applicant’s contention, and those of his counsel, have been noted by the Board; however, he is not entitled to reinstatement, removal of a GOMOR, or removal of the negative rating on his contested OER.  He was properly admonished for his lapse in integrity and judgment by issuance of a GOMOR.  Reference to his indiscretion in the contested OER was administratively correct and appropriate.  He has not shown error, injustice or inequity in his case.

5.  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 this requirement.

6.  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

__th___  __ao___  ___gw__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037008	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000815	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.100	Reinstatement – removal of GOMOR	
2.128	Back pay and allowances	
3.111	Removal of adverse OER	
4.		
5.		
6.