PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:             15 March 2001
	DOCKET NUMBER:    AR2000045308

	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	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Thomas E. Oshaughnessy		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.  In two applications, the applicant requests that a bar to reenlistment and a Letter of Reprimand (LOR), dated 3 January 1989, be removed from his Official Military Personnel File (OMPF).

3.  The applicant states, in effect, that in late 1988 a report of investigation under the provisions of Army Regulation 15-6 concerning sexual harassment charges was completed.   The investigating officer concluded that the case should be closed without prejudice.  There was insufficient evidence to warrant any other finding.  It was further recommended that he be reassigned in order to reestablish his credibility.  After his release from active duty in 1992, he points out that he continued his military career in the US Army Reserve (USAR) with great success and was promoted to the rank of sergeant first class (E-7).  He now claims that after he submitted an application to the Active Guard/Reserve (AGR) Program, he was notified by the AGR board of a LOR he received over 
10 years ago hindered his acceptance into the program.  Therefore, he requests removal of the LOR from his OMPF.  Until this is accomplished, he feels he would not be given fair consideration for acceptance into the AGR Program.  He also submits a copy of a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) in accordance with Army Regulation 15-6. 

4.  The applicant's military records show that he had two prior periods of honorable service in the Regular Army (RA) from 4 November 1980 through
17 August 1983 and from 18 August 1983 to 18 May 1986, prior to the enlistment under review. 

5.  On 19 May 1986, he reenlisted in the RA for 6 years, with the rank of sergeant, pay grade E-5, for continued duty in military occupational specialty (MOS) of 76V20 (Material Storage and Handling Specialist/Sergeant) at Fort Bragg, North Carolina. 

6.  On 4 November 1988, an investigating officer was appointed (a female major) by the Commander, 3rd Corps Support Command to investigate the applicant and another sergeant, the applicant's supervisor, for allegations of sexual harassment towards subordinate soldiers under their supervision.  The investigating officer's report of the investigation (DA Form 1574) stated that there was insufficient evidence to substantiate the charges.  She recommended: a)  that the investigation be concluded without prejudice; b)  the applicant be transferred outside the command in order to reestablish his credibility; and c)  that new living arrangements be made which preclude noncommissioned officers (NCOs) from sharing close living spaces with soldiers in their immediate chain of command.  

7.  The Commander, 3rd Corps Support Command essentially approved the findings with the comment that the applicant's conduct as an NCO was not considered appropriate and must be addressed; that the command climate in the applicant's company which allowed the divisive practices within the Supply Support Activity to flourish must be corrected, as well as the living arrangements in that company's billets which allows virtually free access to female billets by male soldiers, particularly NCOs not in proper performance of their duty; the battalion commander was directed to take action to promptly address the above issues.  

8.  On 3 January 1989, he was issued an LOR by his battalion commander for failing to consistently adhere to the dictates of proper senior-subordinate relationships with female soldiers under his responsibility between April and October 1988.  Specifically, he engaged in inappropriate physical contact and made sexually inappropriate comments to soldiers under his supervision, and also visited the rooms of these female soldiers after posted visiting hours.  This violated battalion policy.  The commander referred the LOR to the applicant for review/comment and stated that it was his intent that the LOR be filed in his OMPF.  On 9 January 1989, the applicant submitted a rebuttal, which requested that the LOR not be placed in his OMPF and that he receive a rehabilitative transfer.  The applicant cited his more that 8 years of highly satisfactory service and that while others in the unit violated the same policy, he was not using this as an excuse.  He asked that his career not be ruined and that the LOR not be placed in his OMPF.  

9.  On 25 January 1989, the commander responded that based on the applicant's appeal and further review of his records, he was going to recommend to the Commander, 3rd Corps Support Command (the first general officer in the chain of command) that the LOR be placed on the restricted fiche (r-fiche) of the applicant's OMPF.

10.  On 16 February 1989, the battalion commander notified the applicant, that his recommendation to file the LOR on the r-fiche had been legally reviewed and found improper.  By regulation, the LOR could not be initially filed on the r-fiche of his OMPF, rather only on the performance fiche (p-fiche) of the OMPF.  A local bar to reenlistment imposed when the investigation was initiated should also be removed. The Commander, 3rd Corps Support Command had concurred in these findings, and intended to direct that the LOR be placed on the p-fiche of the OMPF.  The applicant was offered the opportunity to rebut this action.  There is no record of such a rebuttal and on 6 March 1989, the Commanding General of the 3rd Corps Support Command directed that the LOR be filed on the p-fiche in the applicant's OMPF.  He noted that the LOR was imposed as an administrative action and not the result of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice.  

11.  The LOR, with related documents concerning filing instructions, is currently on file in two places on the fiche portion of his OMPF.  The first copy is located in the Disciplinary Portion of his OMPF (fiche-1 which contains the p-fiche).  The second set of documents is located in his Military Personnel Records Jacket (MPRJ, fiche 6 of his OMPF).   

12.  On 15 October 1990, the applicant was deployed to participate in Operation Desert Shield/Desert Storm in Saudi Arabia.  He returned to the United States on 
29 March 1991. 

13.  On 28 August 1991, the applicant reenlisted in the RA for 6 years, in pay grade E-5.   

14.  On 1 November 1991, he was advised that a Department of the Army (DA) Bar to Reenlistment had been imposed under the Qualitative Management Program (QMP).  The bases for the DA Bar were three NCO Evaluation Reports (NCOERs) for the rating periods October 1986-September 1987, September 1988-February 1989 and from March-August 1989, and the LOR, dated 3 January 1989.  Adverse comments on the three NCOERs included a comment from his senior rater that he had potential to become a super leader, but he needed to improve his loyalty and support to his superiors; that he failed to support the DA Sexual Harassment Policy; lacked integrity; displayed poor judgement and failed to distinguish right from wrong; and on the third report for exceeding body fat standards.  

15.  On 30 January 1992, the applicant requested separation as a 
Category 3 soldier, under the Enlisted Voluntary Separation Incentive/Special Separation Benefit (VSI/SSB) Program, effective 21 August 1992.  On 
21 February 1992, he requested a new separation date of 29 September 1992.  On 1 June 1992, his request was approved based on his current enlistment showing no adverse actions.  For reasons unknown, his actual separation date was 29 August 1992.

16.  On 15 July 1992, the DA notified his command that, as an exception to policy, his DA imposed QMP Bar to Reenlistment would be administratively removed since he was scheduled to be separated under the VSI/SSB Program.  This action did not preclude initiation of separation proceeding for reasons not related to his bar to reenlistment.  The documentation concerning the DA imposed bar to reenlistment and the correspondence concerning the administrative removal of the bar is located on the r-fiche (fiche 4 of the OMPF-entitled "Restricted Data").  

17.  On 29 August 1992, the applicant was honorably separated from active duty, under the provisions of Army Regulation AR 635-200, paragraph 16-8, by reason of "discharge with voluntary incentive," and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  He received a first VSI payment of $5,042.26, the first of such payments for 23 years.  His rank was sergeant, pay grade E-5 and he had completed a total of 11 years, 9 months and 27 days of creditable active service and had 21 years (sic) and 25 days of total prior inactive service.  His record shows no lost time.  He was assigned a reentry eligibility (RE) Code of 3V, although DA guidance at that time indicated that the RE code should be RE-3.  He had been awarded the Army Commendation Medal, 2nd Award; the Army Achievement Medal, 3rd Award; the Good Conduct Medal, 3rd Award; the National Defense Service Medal; the Southwest Asia Service Medal, with 3 Bronze Service Stars; the NCO Professional Development Ribbon, with numeral 2;  the Army Service Ribbon; the Overseas Service Ribbon, with numeral 3; and the Kuwait Liberation Medal.

18.  On 30 August 1992, the applicant reenlisted for duty in the USAR under the terms of his separation from active duty in connection with the VSI/SSB program.  He continues to serve in the USAR with a medical logistical unit in a suburb of Atlanta, Georgia.  His NCOERs have been highly satisfactory, he has been promoted to pay grades E-6 and E-7 in the USAR, and he has no recorded indisciplines or lost time since transfer to the USAR.  

19.  On 27 October 1992, the applicant's DD Form 214 was corrected by a Form 215 (Correction to DD Form 214) to show that his total prior inactive service was 
1 month and 25 days, not 21 years and 25 days as originally annotated on his DD Form 214 issued on 29 August 1992. 

20.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual Files, and Army Personnel Qualification Records.  Paragraph 2-3 prescribes that the OMPF is to be maintained in a microcopy form.  It consists of three parts: 1) the service fiche    (s-fiche) which contains service data and general information;  2) the p-fiche which contains performance, commendatory, and disciplinary information; and 3) the r-fiche, which contains historical data or documents which, may normally be improper for review by selection boards or career managers.  If the record belongs to an Army Reservist, copies of his MPRJ and medical records are added to the OMPF.  Letters or memoranda of reprimand filed in accordance with Army Regulation 600-37, are normally filed on the p-fiche.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF, it becomes a permanent part of that file.  That paragraph provides for appeals for transfer/removal of the LOR by this Board or by certain other Departmental agencies.

21.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in OMPF’s.  Chapter 3 covers unfavorable information in OMPF’s.  Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in OMPF’s.  Paragraph 
3-4(b) states that a letter, regardless of the issuing authority may be filed in the 
OMPF maintained by the PERSCOM (active Army officers), the Enlisted Records and Evaluation Center (active Army enlisted personnel), the Army Reserve Personnel Command (ARPERSCOM) (for USAR soldiers), or the proper State Adjutant (for Army National Guard Personnel) only upon the order of a general officer having court-martial jurisdiction over the individual.  The directions for filing in the OMPF will be contained in an endorsement or addendum to the letter. Chapter 7, contains instructions for appeals for removal of unfavorable information from official personnel files.  

CONCLUSIONS:

1.  The applicant was given an LOR on 3 January 1989 in accordance with pertinent Army regulations, with no indication of procedural errors which would tend to violate his rights.  It was filed on the p-fiche (fiche 1) of his OMPF and in his MPRJ (fiche 6) of the OMPF, and presumably in the paper copy of his MPRJ maintained by his unit at that time, and currently with his USAR unit.  

2.  When the DA Bar to Reenlistment was administratively removed from his records in July 1992, it was placed on the r-fiche (fiche 4) in his OMPF by direction of the Department of the Army.  

3.  The Board takes note of the applicant’s highly satisfactory record of service since 1989.  He currently is serving as member of the USAR and has been promoted to pay grades E-6 and E-7 after his release from active duty, and has no recorded indisciplines.  He has reenlisted on at least two occasions and as noted above, the only record of the DA imposed bar to reenlistment is now on his r-fiche (fiche 4).  

4.  The Board now concludes that the LOR has served its purpose.  The applicant has successfully performed his military duties at a highly satisfactory level for more than 11 years.   He has overcome his mistake.  

5.  Therefore, it would be appropriate at this time to transfer the LOR to the 
restricted portion of his OMPF, the r-fiche (fiche 4).  

6.  While he has requested total removal of the LOR from his record, as well as the DA imposed bar to reenlistment, such actions would only be appropriate if the documents were administered in error.   He has not proven this and therefore, the Board finds that a record of the LOR incident and the imposition of the DA bar to reenlistment should be retained, but only where these action would not have an adverse effect on the future management of his military record.  

7.  Additionally, since there is no evidence of error with the imposition of the LOR, the applicant is not entitled to referral of his records to any standby promotion selection or school selection boards based on past nonselection actions by regularly constituted selection boards which have reviewed his records between July 1992 and the date of the action by this Board.  

8.  Additionally, eligibility for AGR positions is not a basis to remove documents administratively filed on the OMPF, to include the r-fiche unless they are in error.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by transferring all copies of the LOR administered against the individual concerned on 3 January 1989, from his p-fiche (fiche 1) and from his MPRJ-fiche (fiche 6) to his r-fiche (fiche-4) in the OMPF.  

2.  That if any copies of the LOR, dated 3 January 1989, are still located in the paper copy of his MPRJ maintained by his USAR servicing personnel office, that such copies be removed, without note, and destroyed.    

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__emw __  __rtd____  __teo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Ernest M. Willcher____
		        CHAIRPERSON

INDEX

CASE ID	AR2000040738	
SUFFIX		
RECON		
DATE BOARDED	20010315	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT IN PART 	
REVIEW AUTHORITY	DASA	
ISSUES         1.	134.01	
2.	134.02	
3.		
4.		
5.		
6.