PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 September 2001
	DOCKET NUMBER:   AR2001053568

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Donald P. Hupman		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, through counsel, that his records be corrected to show that he was in a drilling status for the period June 1997 through June 2000; that his records be corrected to show that he attended 36 regular drills and 3 Annual Training periods; that he be paid drill pay for the 36 drill periods and the 3 Annual Training periods; and that he be awarded the appropriate retirement points for the 36 drill periods and the 3 Annual Training periods.

3.  The applicant states, his contentions through counsel.  In a three page addendum to the application to the Army Board for Correction of Military Records (ABCMR), the counsel contends, in summary, that the applicant was “wrongfully removed from drilling status” for the period June 1997 through June 2000 and was reinstated in June 2000.  

4.  Counsel states that the applicant could not provide a urine sample during unit drug testing and as a result received a General Officer Memorandum of Reprimand (GOMOR) [also referred to as a Letter of Reprimand by the major general who authored it] and a referred Officer Evaluation Report (OER) and was transferred to the Individual Ready Reserve (IRR).  Counsel contends that each one of these actions was appealed, but the issues were not resolved because “no one in the reserve system seemed to have any idea what they were doing.”

5.  Counsel states that finally the Inspector General became involved, the wrong done to the applicant was confirmed, and the applicant was reinstated to a drilling status in June 2000.  However, counsel points out that the applicant “improperly lost three years of reserve service.” and concludes that relief is warranted because the applicant would have continued to serve were it not for the improper relief.

6.  The application to the ABCMR contains the following exhibits:  a 22 October 1999 letter to the applicant and his counsel stating the appeal of the OER covering the period 961001-970510 is returned without action because the OER in question has not been filed; a 7 October 1999 memorandum from counsel to the Army Reserve Personnel Command (AR-PERSCOM) appealing the OER cited previously; a 5 August 1999 memorandum from the Deputy Chief of Staff for the 335th Theater Signal Command to the applicant providing copies of documents related to his “relief for cause”; a copy of an 8 July 1999 memorandum from counsel to the Deputy Chief of Staff for Personnel of the U.S. Army Reserve Command notifying that headquarters of the inaction by the 335th Theater Signal Command in finalizing the applicant’s relief for cause OER so it can be appealed and requesting information on the applicant’s transfer to the IRR; a 25 January 1999 response from the USARC stating the corrective actions be undertaken in the applicant’s case; a copy of an 8 July 1999 memorandum from the applicant’s counsel to the Department of the Army Suitability Evaluation Board (DASEB) appealing the GOMOR; a copy of an 8 May 1997 Letter of Reprimand tendered by the USAR major general in command of the 335th Theater Signal Command; a copy of a 10 February 1998 letter from the Deputy Chief of Staff for Personnel of the USARC to a Member of Congress, a biographic summary with addendum of the applicant (as of 2 May 1998); a copy of a Defense Investigative Service Form 23a (Statement of Subject), dated 2 October 1999, containing the applicant’s statement to a special agent of the Defense Investigative Service; a 7 October 1999 memorandum from the applicant’s counsel to the Commanding General of the USARC appealing the notice of intent to reassign the applicant to the IRR; a copy of a 23 July 1999 letter from the Deputy Chief of Staff for Personnel of the USARC to counsel for the applicant providing an interim response to the effect that more time is needed to gather information from the 335th Theater Signal Command regarding the applicant’s transfer to the IRR and relief for cause OER; and a copy of a 2 October 1998 letter from the Deputy Chief of Staff for Personnel of the USARC regarding delay in the actions promised to be taken in the response to the Member of Congress. 

7.  The applicant’s military records show that he was appointed as a Reserve commissioned officer effective 6 June 1976.  He served in the Army National Guard from October 1976 until October 1982 when he reverted to control of the USAR.  Effective 5 November 1995, the applicant was assigned to the 845th Signal Battalion as the Battalion Commander.  

8.  The copy of the Letter of Reprimand provided by the applicant’s counsel shows that it was signed by the USAR major general in command of the 335th Theater Signal Command and is dated 8 May 1997.  Paragraph 2 of the Letter of Reprimand states:  “I find your failure to submit a urine sample for testing and screening for illegal drugs at the time requested, constitutes gross misconduct, dereliction of duty, conduct unbecoming of an officer of the U.S. Army, and in direct violation of U.S. Army rules and regulations.”

9.  The applicant’s Official Military Personnel File (OMPF) does not contain a copy of the relief for cause OER.  The records available to the Board do not contain the relief for cause OER identified by the applicant and his counsel in their 7 October 1999 appeal; however the applicant’s rebuttal to the advisory opinion from the Office of the Chief Army Reserve (OCAR) contains a copy of the relief for cause OER which is signed but undated by the rater and senior rater. 

10.  Headquarters, 335th Signal Battalion Orders 189-16, dated 8 July 1997, contained in the applicant’s Official Military Personnel File (OMPF) microfiche with a date of “02/28/01” [28 February 2001] shows that the applicant was released from the 845th Signal Battalion.  These orders show the reason as “voluntary”, the effective date as 31 July 1997, and the authority as Army Regulation 140-10, paragraph 4-9d.

11.  In a 10 February 1998 letter, the Acting Chief of the Personnel Management Division of the USARC responded to a Member of Congress regarding the actions taken against the applicant subsequent to the urinalysis testing incident on 3 May 1997.  In that letter, the Acting Chief of the Personnel Management Division stated that the applicant alleged that he was not afforded the opportunity to appeal the findings in the Letter of Reprimand prior to the Commanding General of the 335th Theater Signal Command making his decision on the filing of the Letter of Reprimand. The letter further states that the Letter of Reprimand will be forwarded to the applicant for “information and acknowledgement of his or her rebuttal opportunity” prior to filing of the Letter of Reprimand as required by Army Regulation.  

12.  The 10 February 1998 letter from the Acting Chief of the Personnel Management Division of the USARC to a Member of Congress also stated that review of the case resulted in a determination that the relief for cause OER had not been referred to the applicant for comment and that “This oversight has been corrected and the OER was referred to him on November 25, 1997.”

13.  The 10 February 1998 letter from the Acting Chief of the Personnel Management Division of the USARC to a Member of Congress also stated, in summary, that the applicant’s reassignment to the IRR was processed as a “voluntary” reassignment.  Further, the letter states:  “This was in error and the reassignment order is currently being amended to indicate that this was an involuntary action on [applicant’s name omitted] part.”  The letter continued that the applicant had the right to appeal these actions to the next higher headquarters.

14.  The Deputy Chief of Staff for Personnel of the USARC wrote to the applicant, by letter dated 25 January 1999, in response to an inquiry by the applicant regarding an update on the matters addressed to the Member of Congress. The Deputy Chief of Staff for Personnel stated:  “We indicated in our October 8,1998, response to your previous inquiry that your relief for cause OER and involuntary reassignment action, although warranted, were not processed correctly.”  In summary, the letter stated that the 335th Theater Signal Command did not provide the corrected notification of involuntary assignment, but did so on 5 December 1998. The Deputy Chief of Staff for Personnel also stated that the USARC had identified additional “discrepancies” on the relief for cause OER and had directed the 335th Theater Signal Command to make corrections.

15.  The 8 July 1999 memorandum from the applicant’s counsel to the Deputy Chief of Staff for Personnel of the USARC states that the relief for cause OER has not been finalized and there has been no information forthcoming on the applicant’s reassignment to the IRR.  The memorandum, dated 5 August 1999, to the applicant from the Deputy Chief of Staff for Personnel of the 335th Signal Command states:  “Enclosed are copies of correspondence forwarded to you on 5 December 1998 regarding your relief for cause Officer Evaluation Report (OER); notice of intent to Relieve for Cause and revocation of involuntary reassignment orders to the Individual Ready Reserve (IRR).”  This memorandum also advised that the actions were still open and provided the applicant 30 days in which to respond or appeal.

16.  The 7 October 1999 memorandum by the applicant’s counsel appealed the relief for cause OER to AR-PERSCOM and requested that it be expunged from the applicant’s records.  By letter dated 22 October 1999, the Chief of the Evaluations Support Branch at AR-PERSCOM advised the applicant’s lawyer that the OER in question had not been officially accepted for inclusion in the applicant’s OMPF and to contact the appropriate Personnel Service Battalion regarding the status of the OER.

17.  The Performance Section of the applicant’s OMPF microfiche with a date of 28 February 2001 contains a USARC Memorandum for Record, dated 26 June 2000.  This memorandum (Subject:  Nonrated Statement) states, in effect, that an OER “has not been rendered” for the applicant’s period of service “961001-970730” [1 October 1996 to 30 July 1997] and this period of service is “declared nonrated.”  Paragraph 2 of this memorandum states:  “Authority for Action:  (X) AR-PERSCOM administrative correction based on information in official records.” This memorandum is authenticated by the Chief of the Evaluations Support Branch of AR-PERSCOM.

18.  The USAR Retirement Points Accounting System shows that the applicant had accrued approximately 19 consecutive qualifying years for Reserve retirement benefits at age 60 until the urinalysis test incident in May 1997.  This system also shows that during the retirement year ending 20000605 [5 June 2000] he accrued 59 retirement points thereby achieving a qualifying year for retirement purposes.  This record also shows that the applicant did not accrue the minimum required 50 retirement points per year to achieve qualifying years for retirement purposes during retirement year ending 19980605 [5 June 1998] and retirement year ending 19990605 [5 June 1999].

19.  The applicant’s OMPF microfiche contains an OER which shows the applicant completed two weeks of Annual Training with the U.S. Army Signal Command at Fort Huachuca, Arizona, during the period 7 June 1999 through 20 June 1999.

20.  In the processing of this case, an advisory opinion was obtained from the Chief of the Personnel Division of OCAR.  A copy of that opinion was provided to the applicant and his counsel, by letter dated 12 July 2001, for rebuttal or comment.  The applicant submitted a rebuttal, dated 9 August 2001, which was received by the ABCMR on 15 August 2001.

21.  After restating the applicant’s requests and the facts in this case, the Chief of the Personnel Division stated that he could not support the applicant’s requests. He admits that the applicant was placed in the IRR based on questionable circumstances, but that the applicant had ample opportunity to earn service and retirement points as a member of the IRR and in fact did so during his third year in the IRR. The Chief of the Personnel Division further states that “in order for an Army Reserve soldier to receive points for pay and retirement, there must be proof that duty was performed.  [The applicant’s name omitted] assignment to the IRR, in and of itself did not preclude him from participation for retirement points only, active duty for training, or completion of corresponding course for retirement credit.  Therefore, awarding [the applicant’s name omitted] points for pay and retirement for duty he did not perform is not justified.”

22.  The applicant submitted a seven-page rebuttal with 13 enclosures which notably includes an undated copy of the relief for cause OER; an unsigned copy of a memorandum, dated 16 June 1998, notifying the applicant of his right to appeal his involuntary transfer to the IRR with a copy of 335th Theater Signal Command Orders A-188-10, dated 14 June 1998, revoking the involuntary reassignment to the IRR; a letter from the Chief of the Assistance Division of the Department of the Army Inspector General (DAIG) to a Member of Congress which confirms that there is no adverse information in the applicant’s records according to the AR-PERSCOM Professional Management Officer and that the DAIG cannot grant the back pay requested by the applicant; and a copy of 335th Theater Signal Command Orders 00-154-006, dated 2 June 2000, which assigned the applicant from the 845th Signal Battalion to the 375th Transportation Group effective 16 May 2000.

23.  In his rebuttal the applicant restates the circumstances surrounding the urinalysis test on 3 May 1997 and the events related to the Letter of Reprimand, the relief for cause OER and involuntary transfer to the IRR.  He argues essentially that he had an “exemplary” military career.  He also points out that there is case law wherein persons wrongfully discharged by military authorities who failed to follow regulations have been granted relief including back pay.  In conclusion, the applicant and his counsel state that the applicant was deprived of the opportunity to drill for points and pay because he was illegally transferred and if the transfer was based on the GOMOR and the relief for cause OER, then he should be compensated for the loss of pay and points since there is no record of a GOMOR or relief for cause OER in the applicant’s official records.

24.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Paragraph 3.6 of this regulation requires that unfavorable information will be referred to the recipient for information and acknowledgment of his or her rebuttal opportunity. 

25.  Paragraph 4-27 of Army Regulation 623-105 requires that certain types of Officer Evaluation Reports (OER) be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army.  Listed among those types of OER’s requiring referral are relief for cause reports.  

26.  Army Regulation 140-10 (Assignments, Attachment, Details and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring USAR soldiers.  Paragraph 2.20 states that in cases of involuntary reassignment unit commanders will:  (1) Recommend involuntary reassignment to the proper USAR control group or another unit within the area command jurisdiction.  (2) Notify the officer in writing.  (3) Ensure that a relief for cause OER is prepared. (4) Send the recommendation to the United States Army Reserve Command (ARCOM) or United States Army Reserve General Officer Command (GOCOM) commander.  This provision of the regulation also requires evidence that the soldier was informed of his or her right to appeal an involuntary release be furnished and that final action will not be taken until the relief for cause OER is received.

27.  Sections 12731 through 12739 of Title 10, United States Code, authorize retired pay for Reserve Component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more. 

CONCLUSIONS:

1.  Evidence of record shows that the Commanding General of the 335th Theater Signal Command prepared a Letter of Reprimand, dated 8 May 1997, stating that the applicant’s failure to submit a urine sample for testing and screening for illegal drugs at the time requested constituted “gross misconduct, dereliction of duty, conduct unbecoming of an officer of the U.S. Army, and in direct violation of U.S. Army rules and regulations.”  Evidence of record also indicates that initially the applicant was not properly provided an opportunity to provide comment on this Letter of Reprimand as required by Army regulation.

2.  Evidence of record shows that subsequent to preparation of this 8 May 1997 Letter of Reprimand, the applicant was relieved for cause and was tendered a relief for cause OER which was not referred to him in a timely manner for comment.  Further, evidence shows that he was also transferred to the IRR involuntarily without being provided a timely opportunity to submit a comments or a rebuttal as required by Army regulation.

3.  Letters to Members of Congress from the USARC and letters to the applicant from the USARC and 335th Theater Signal Command attest to the fact that efforts were made to correct the failures by the chain of command in properly documenting and referring the Letter of Reprimand, the relief for cause OER and the involuntary transfer to the IRR.  However, the Board notes that these efforts were not accomplished until on or about 5 August 1999, over two years after the fact and in spite of repeated inquiries from Members of Congress, the applicant and the counsel representing the applicant.

4.  Although supporting documentation is not available in the applicant’s OMPF microfiche available to the Board, there is no evidence that the 8 May 1997 Letter of Reprimand was filed in his OMPF.  

5.  Evidence of record shows that the relief for cause OER was not “rendered” or filed in the applicant’s OMPF and that the period of service covered by that OER was declared “nonrated”.   

6.  Orders show that the applicant was reassigned effective 16 May 2000 from the 845th Signal Battalion [the same unit from which he was relieved in July 1997] and transferred to the 375th Transportation Group, a Troop Program Unit.  Subsequently, 81st Regional Support Command Orders 280-19L, dated 6 October 2000, released the applicant from the 375th Transportation Group for voluntary transfer to the 10th Battalion (CAS3), 6th Brigade, of the 100th Division (Individual Training) (USAR) effective 1 September 2000.  

7.  Based on the foregoing, the Board determined:

	a.  there is no derogatory information (Letter of Reprimand or relief for cause OER) contained in the applicant’s OMPF microfiche, dated 28 February 2001; 

	b.  the orders voluntarily transferring the applicant to the IRR effective 31 July 1997 (Headquarters, 335th Signal Battalion Orders 189-16, dated 8 July 1997) , are improperly filed on the applicant’s OMPF microfiche, dated 28 February 2001;

	c.  the orders published by the 335th Theater Signal Command, dated 2 June 2000, indicate the applicant was a member of the 845th Signal Battalion from the time of his assignment effective 5 November 1995 until he was assigned to the 375th Transportation Group effective 16 May 2000, thus that the applicant was not ever transferred to the IRR;

	d.  orders published on 6 October 2000 show the applicant was reassigned from the 375th Transportation Group to the 100th Training Division effective 1 September 2000;

	e.  the applicant completed two weeks of Annual Training with the U.S. Army Signal Command at Fort Huachuca, Arizona, during the period 7 June 1999 through 20 June 1999; and 

	f.  the applicant is currently a member of a USAR unit in good standing, is attending drill periods and during the retirement year ending 5 June 2000 accrued 59 retirement points, thereby achieving a qualifying year for retirement purposes.

8.  The Board considered the request by the applicant and his counsel to correct the applicant’s military personnel records to show that he was in a drilling status for the period June 1997 through June 2000; that his records be corrected to show that he attended 36 regular drills and 3 Annual Training periods; that he be paid drill pay for the 36 drill periods and the 3 Annual Training periods; and that he be awarded the appropriate retirement points for the 36 drill periods and the 3 Annual Training periods.

9.  Based on evidence of record available to the Board and the evidence presented by the applicant and his counsel, it is clear that the applicant’s transfer to the IRR effective 30 July 1997, based on the 8 May 1997 Letter of Reprimand and relief for cause OER, was erroneous.  It is also clear to the Board that if that erroneous transfer had not occurred, then the applicant’s attendance at scheduled drills and Annual Training would have continued uninterrupted during the period June 1997 through June 2000 and that he would have been entitled to pay and retirement points for this service.  Therefore, the Board has determined:

	a.  that the applicant’s records should be corrected to show that he was not transferred to the IRR effective 30 July 1997 and that his status as a member of the USAR assigned to a Troop Program Unit was continuous from 30 July 1997 through his assignment to the 375th Transportation Group effective 16 May 2000. 

	b.  that the applicant is entitled to credit for 48 Inactive Duty Training periods per year for retirement years ending on 5 June 1998, 5 June 1999 and 5 June 2000,

	c.  that the applicant is entitled to credit for 15 days of Annual Training for retirement years ending on 5 June 1998 and 5 June 1999;

	d.  that the applicant is not entitled to any additional service credit, pay or retirement points for Annual Training during the retirement year ending on 5 June 2000 because he has already received service credit, pay and retirement points for Annual Training which he completed from 7 June 1999 through 20 June 1999;

	e.  that the applicant is entitled to back and allowances for 48 drill periods per year for retirement years ending on 5 June 1998, 5 June 1999 and 5 June 2000;

	f.  that the applicant is entitled to back pay and allowances for 15 days of Annual Training per year only for retirement years ending on 5 June 1998 and 5 June 1999;

	g.  that the applicant is entitled to 15 membership points, 15 active duty points for Annual Training and 48 points for Inactive Duty Training per year (a total of 78 retirement points per year) for retirement years 1998, 1999, and 2000 in addition to any retirement points already earned for completion of extension courses.  

	h.  that the applicant is entitled to amendment of his OMPF with a nonprejudicial statement explaining why the applicant did not receive OER’s to which he otherwise would have been entitled had he not been erroneously transferred to the IRR for the period 30 July 1997 through 6 June 1999; 

10.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected: 

	a.  by removing Headquarters, 335th Signal Battalion Orders 189-16, dated 8 July 1997, which show that the individual concerned was voluntarily reassigned from the 845th Signal Battalion to the IRR from the applicant’s OMPF; 

	b.  by showing his service in a Troop Program Unit of the USAR was continuous from 30 July 1997 through 16 May 2000;

	c.  by showing he completed 48 Inactive Duty Training periods per year during the three retirement years ending on 5 June 1998, 5 June 1999 and 5 June 2000,

	d.  by showing he completed 15 days of Annual Training per year during the two retirement years ending 5 June 1998 and 5 June 1999; 

	e.  by showing that he received 78 retirement points per year for the three retirement years ending 5 June 1998, 5 June 1999 and 5 June 2000;

	f.  by placing a nonprejudicial statement in his OMPF explaining why he did not receive OER’s to which he otherwise would have been entitled had he not been erroneously transferred to the IRR for the period 30 July 1997 through 6 June 1999;

2.  That, once the corrections in paragraph 1, a through h above, have been made that the Commander of AR-PERSCOM correct the Retirement Point System data of the individual concerned to show his correct number of retirement points and amount of qualifying service creditable for retirement purposes and issue a 20 year letter, if appropriate.

3.  That the Defense Finance and Accounting Service pay the individual concerned all back pay and allowances to which he is entitled for 48 periods of Inactive Duty Training per year during retirement years beginning on 6 June 1997 and ending on 5 June 2000 (a total of three years) and for 15 days of Annual Training per year during the retirement years beginning on 6 June 1997 and ending on 5 June 1999 (a total of two years).

4.  That the Proceedings of the ABCMR in this case be placed on a “Restricted Microfiche” and made a permanent part of the OMPF of the individual concerned.

BOARD VOTE:  

__DPH__  ___CLG__  __CLA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Ms. Celia L. Adolphi__
		        CHAIRPERSON

INDEX

CASE ID	AR2001053568	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010911	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	135.0000.0000	
2.	135.0200.0000	
3.		
4.		
5.		
6.