PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            19 October 2000
	DOCKET NUMBER:   AR2000040384

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Ernest W. Lutz, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Tracey L. Pinson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests the removal of a Memorandum of Reprimand (MOR) from his Official Military Personnel File (OMPF).

3.  The applicant states, In effect, that he received a MOR and was relieved of command for something he did not do and that the procedures used to relieve him of his command were in violation of the applicable Army Regulation (AR) and XVIII Airborne Corps policy.  He further states that AR 600-20 requires the written approval of a general officer before relieving a commander of his command and that the Corps policy further expands the requirements to require 30 days of supervision when substandard performance is involved.  He goes on to state that he was relieved of his command, was given a MOR, and yet never received an officer evaluation report (OER) to document the event or period of service.  He also states that the issues for which these events involved were blown out of proportion and was directly related to the commander’s leadership style, which was dramatically different than most commanders.  He continues by stating that the events in question all occurred during a relatively short period of time during deployment in support of Operation Desert Storm/Shield when many things were happening during the process of his deploying his unit overseas by ship and at the same time having his unit transferred under the control of another battalion commander who operated differently from his parent unit commander. Additionally, he states that he appealed the MOR to the Board in 1996 and received a return receipt for his application; however, he never received an answer to his application.  He was promoted to Major and now that the MOR has appeared in his OMPF, he desires its removal and promotion reconsideration to the rank of Lieutenant Colonel if appropriate.  In support of his application he submits copies of the regulation and policy requiring a general officer’s approval for the relief of an officer, a copy of his evaluation reports, a letter of support from his subsequent brigade commander, current commander, and statements from members of his unit. 

4.  The applicant’s military records show that after serving 5 years as an aviator in the Marine Corps, the applicant was discharged in the rank of First Lieutenant (1LT).  He accepted a United States Army Reserve (USAR) appointment to the rank of 1LT with a concurrent call to active duty on 1 April 1986 as an ordnance officer.  He was promoted to the rank of Captain (CPT) on 1 October 1987.

5.  During the period of 22 December 1989 to 27 July 1990, the applicant received an OER evaluating him as the commander of the 602d Maintenance Company, 169th Maintenance Battalion at Fort Hood, Texas.  He received maximum ratings and laudatory comments from his rater and a two-block center-of-mass rating from his senior rater (SR) along with laudatory comments as well.

6.  The applicant did not receive an OER for the period of 28 July 1990 to 25 November 1990 (the period at issue).  However, his record contains a statement from the Total Army Personnel Command (PERSCOM) indicating that all attempts to obtain a report for that period were unsuccessful.

7.  However, the applicant’s records contain a MOR from the commander of the 553rd Corps Support Battalion (CSB), 1st Corps Support Command (COSCOM) in Saudi Arabia.  It is addressed to the applicant and shows his unit now as the 602d Maintenance Company in the 553rd CSB, 1st COSCOM.  The MOR reprimands the applicant for substandard performance as the commander of the 602d Maintenance Company and indicates that he repeatedly failed to meet minimum standards in the areas of weapons accountability and leadership and that his integrity was suspect.  The imposing commander (a Lieutenant Colonel) indicated that he would recommend that the MOR be filed in the applicant’s OMPF.  The applicant acknowledged receipt of the MOR on 24 October 1990 and indicated that he would submit a statement in his own behalf.

8.  On 25 October 1990, the applicant submitted a seven page rebuttal to the MOR in which he explained his version of the events for which he was accused and requested that an investigation be conducted under the provisions of Army Regulations 600-37 and 15-6 to determine what the real problem was.  There is no indication in the available records which indicate that an investigation was ever conducted.

9.  The battalion commander reviewed the applicant’s rebuttal and recommended that the MOR be filed in his OMPF.  

10.  On 2 November 1990, the officer having general court-martial jurisdiction, a Colonel and the 1st COSCOM commander, directed that the MOR be filed in the applicant’s OMPF.

11.  Meanwhile, the applicant was transferred to the 171st Support Group for the period of 26 November 1990 to 11 April 1991 where he served as an assistant  S-4 and received maximum ratings from his rater and SR.

12.  The applicant was returned to Fort Hood on or about 12 April 1991 and continued to serve until he was honorably released from active duty on 31 December 1992 under the provisions of Army Regulation 635-100, chapter 3, and the Voluntary Separation Incentive Program (VSIP).  He had served 11 years and 9 months of total active service and was separated under the Voluntary Separation Incentive (VSI) option of the VSIP with entitlement to receive payments of $11,398.79 every year for 22 years, provided he remained affiliated with the USAR.  He was transferred to a USAR Troop Program Unit (TPU) in San Marcos, Texas and was promoted to the rank of Major on 2 November 1995.

13.  A review of the memorandum provided by the applicant outlining the procedures for the relief of an officer of the XVIII Airborne Corps, the unit under which the applicant was serving at the time he received the MOR, indicates that it was the commander’s policy (a three star general) that no officer be relieved for substandard performance unless the supervisor had provided the officer a memorandum outlying the direct supervision that had been provided and the areas in which performance was substandard, the standards expected, and the length of time (no less than 30 days) the officer had to correct the deficiencies.  A relief for cause OER was required following a relief as was a rehabilitative transfer.  Relief of an officer for other than substandard performance required written approval of the first general officer in the chain of command and preparation of a relief for cause OER as well.

14.  A review of the applicant’s OMPF and OER history shows that the officer has always been deemed an excellent officer by his rating chain (minus the period in question) and has been recommended for advanced schooling, command and promotion.  There is no other evidence to suggest that he is a substandard officer or marginal performer contained in his OMPF.  

15.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  It states, in pertinent part, that a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer or officer having general court-martial jurisdiction over the recipient.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  However, before a letter may be filed in the OMPF, it must be referred to the recipient concerned for comment, it must include reference to the intended filing of the letter, and must be signed by an officer authorized to direct such filing.

16.  Army Regulation 600-20 prescribes basic responsibilities on command, military discipline, and conduct.  It states, in pertinent part, that the relief of an individual for cause is one of the most serious steps taken.  It is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate under the circumstances.  Actions to relieve an officer from any command position will not be taken until after written approval by the first general officer in the chain of command of the officer being relieved is obtained. 

CONCLUSIONS:

1.  While the Board does not take lightly the decisions made by commanders in the field, the Board does find that the evidence in the applicant’s case suggest that he was unjustly relieved of his duties as a commander without the full benefit of his due process rights.

2.  The applicant clearly did not receive a relief for cause OER as a commander for the period in question.  However, he did receive a MOR, was essentially moved from his position as a commander, and did not receive the benefit of an investigation under the provisions of Army Regulation 15-6 as he requested. 

3.  The issue before the Board is whether or not the MOR was properly imposed by the appropriate commander without any violations of the applicant’s rights.  However, the Board finds that his relief for cause goes towards determining if the commander adhered to the spirit of the regulations and policies in effect when he issued the applicant a MOR, relieved him of his duties, and failed to render a relief for cause report.

4.  The Board finds in this case that while the commander was within his authority to issue the applicant a MOR, there is sufficient evidence to show that the manner in which the MOR was issued in conjunction with “Unofficially” relieving him of his duties as a commander and not preparing an OER to memorialize the event, constituted an injustice to the applicant and the Army and makes the whole process suspect.

5.  While the applicant was afforded his rights to rebut the MOR, the Board finds that the circumstances in this case warranted full compliance with the applicable regulations and policies in effect at the time so as to resolve any doubt that may have existed at the time.  The fact that full compliance was not adhered to leads the Board to believe that given the applicant’s excellent record of performance both prior to and subsequent to the MOR, that the applicant was unjustly reprimanded for events that did not justify such action at the time.  Therefore, the MOR should not have been issued and should be removed from his OMPF. 

6.  Likewise, if he has been nonselected for promotion to the rank of LTC by any boards that viewed the MOR, he should receive promotion reconsideration by a Standby Advisory Board (STAB) under the criteria used by all boards that failed to select him.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing the MOR dated 24 October 1990 and all related documents pertaining to the individual concerned from his OMPF. 

2.  That he receive promotion reconsideration to LTC, if applicable, by all promotion boards that viewed the MOR and failed to select him for promotion and if selected, that he be granted all back pay and allowances that result therein.

3.  That following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing. 

BOARD VOTE:  

__ewl ___  ___tp ___  __cjp ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Ernest W. Lutz, Jr.  ___
		        CHAIRPERSON

INDEX

CASE ID	AR2000040384	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  280	126.0300/Remvl MOR	
2.  311	131.0100/recon promotion	
3.		
4.		
5.		
6.