RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 February 2004                   
	DOCKET NUMBER:   AR2003087979

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Robert L. Duecaster		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that a 27 July 1999 Letter of Reprimand (LOR) be expunged from his Official Military Personnel File (OMPF).

2.  The applicant states in a 24 February 2003 letter to the Board that he deeply regrets the incident for which he was issued the LOR and apologizes for the embarrassment that it has caused the US Army Infantry Center, the US Army, his fellow noncommissioned officers (NCO's), his family, and himself.  He states that the Department of the Army Suitability Evaluation Board (DASEB) denied his request for removal of the LOR.  However, on 9 April 2001, the US Army Enlisted Records and Evaluation Center (EREC) approved his appeal of a Qualitative Management Program (QMP) bar to reenlistment.  He successfully completed his tour as a drill sergeant at Fort Benning, Georgia and he has continued superior duty performance as evidence by the eight Non-Commissioned Officer Evaluation Reports (NCOERs) he submitted with his application.  He received three of these evaluations while in drill sergeant status and five since leaving drill sergeant status.  He has successfully completed several schools; he has been selected to perform as the Division Liaison in Seoul, Korea; he has been awarded the Meritorious Service Medal (MSM); and he has strong support of both his past and current chains of command.  He contends that he is not contesting the LOR; he admits giving the accuser his personal clothing, but he did not commit the offense for personal gain.  A week prior to the incident, his wife was diagnosed with cancer.  He was frustrated and suffering from personal stress, therefore, he lost his head when approached by the accuser.  Had he not put himself in a compromising position, the incident would not have occurred.  He apologizes because he failed to use the sound judgment that he has displayed throughout his military career.  He made an error in judgment and he accepts full responsibility for his actions.  He believes the filing of the LOR in his OMPF or on his restricted fiche restricts his potential to serve and excel in the Army.

3.  The applicant provides in support of his request:  eight NCOERs for the period between August 1998 and January 2003; an Approved Removal of a Qualitative Management Program (QMP) action, dated 9 April 2001; certificates for completion of the Airborne Training and the US Army Sniper School; orders for completion of the MANCHU 25-mile road march; a citation for award of the MSM; and a Criminal Investigation (Division) Command (CID) Report and memoranda from ten individuals for whom he had worked either in his previous or current chains of command.  The memoranda include statements from two majors general, one dated 18 February 2003 and the second undated.

4.  The undated memorandum was written by the Commanding General, 2nd Infantry Division, Korea to the Department of the Army Suitability Evaluation Board (DASEB) requesting that the applicant's LOR be transferred from the applicant's OMPF to the restricted fiche.  The general states he believes the intended purpose of the LOR has been served and that the transfer would be in the best interest of the Army.  The general cited that the applicant was restored to duty and he successfully completed his tour as a drill sergeant; that he graduated from Airborne and Sniper Schools; that the QMP bar had been removed; that the applicant had demonstrated sustained, superior performance as evidence by his NCOERS and letters of recommendation; and that the applicant had performed demanding duty as a liaison NCO in the 2nd Infantry Division with skill and dedication and that he believed maintaining the LOR in the applicant's performance fiche would prevent the Army from taking full advantage of the applicant's talents and potential.  The applicant's superior performance of duty over the 3 years since the imposition of the LOR shows it is in the best interest of the Army to allow him to fully compete for promotion and positions of increased responsibility.

5.  The memorandum from the Commanding General, United States Army Infantry Center and Fort Benning, Fort Benning, Georgia, dated 18 February 2003, is written to this Board and states that, as the general officer who issued the filing instructions for the applicant's LOR, he believes the LOR should be removed from both the applicant's OMPF and the restricted fiche; that it is his honest opinion the applicant has learned from the incident for which the LOR was imposed; and the applicant has proven though his past and current performance that he has the potential for future advancement.  The applicant was restored to duty; he successfully completed his tour as a drill sergeant and he has sustained superior performance as express by his NCOER's and letters of recommendation.

CONSIDERATION OF EVIDENCE: 

1.  On 26 November 1990, the applicant enlisted in the Regular Army and has continued to serve for more than 13 years through a series of continuous reenlistments.  He is currently a staff sergeant (SSG), pay grade E-6, assigned to Fort Carson, Colorado.  

2.  A CID Report of Investigation shows that the CID established probable cause to believe that, between 16 and 19 May 1999, the applicant solicited and bribed a private when he demanded $350.00 to help him leave the company area in an absent without leave (AWOL) status.  The applicant instructed the private on how to leave the training area on foot without getting caught.  The applicant threatened to kill the private, if he reported their "pay off" conversations to the chain of command.  

3.  On 27 July 1999, the Commander, Headquarters, Infantry Training Brigade, US Army Infantry School, Fort Benning, Georgia issued to the applicant an administrative LOR.  The LOR stated the applicant, as a drill instructor, accepted a bribe from a private.  The LOR cited the CID investigation as revealing the applicant accepted approximately $300.00 from a private subject to his orders and control.  In exchange for payment, the applicant assisted the private to be AWOL by providing him with civilian clothes and information about avoiding capture.  The brigade commander also states the applicant's actions fell far below the level of personal standards that are expected of a NCO.  The applicant demonstrated a gross lack of sound judgment, integrity, and maturity, and seriously compromised his standing as a NCO.  The applicant misused knowledge and experience as a drill instructor that the US Army entrusted to him to assist a trainee in being AWOL.  The applicant was a disappointment to him and fellow NCO's and caused him to seriously doubt whether the applicant's continued military service was in the best interest of the Army.  The LOR was being imposed as an administrative measure and not under the provisions of Article 15, Uniform Code of Military Justice.  In doing so, he was not mitigating or condoning the applicant's conduct.  Additionally, the brigade commander stated that he was considering recommending the LOR be filed in the applicant's OMPF.  The applicant had 72 hours to submit a rebuttal.  On 11 August 1999, the applicant acknowledged receipt of the LOR.  On 13 August 1999, the applicant requested that the LOR not be filed in his OMPF.  On the same date, the applicant's unit commander recommended that the LOR be filed in the applicant's OMPF.  The applicant's unit commander stated that the preponderance of evidence showed there was an inappropriate relationship between the applicant and the private in a training status, therefore, the applicant crossed the line and violated the mandate placed on him as a drill sergeant to uphold strict professionalism, judgment, and integrity while interacting with trainees.  On an unknown date, the battalion commander also recommended that the LOR be filed in the applicant's OMPF.  On an unknown date, the brigade commander stated that the applicant committed a serious offense, stellar record not withstanding, and recommended the LOR be filed in the applicant's OMPF.  On 2 September 1999, the Commanding General (CG), United States Army Infantry Center (USAIC), Fort Benning, directed that the LOR be filed in the applicant's OMPF.

4.  On 31 August 2000, a Department of the Army (DA) E-7 Promotion Selection Board identified the applicant for a DA Bar to Reenlistment under the QMP.  The applicant was notified that the LOR was the basis for the DA Bar to Reenlistment.

5.  The applicant appealed the DA denial of continued active duty service under the QMP and, on 9 April 2001, a DA Standby Advisory Board approved his request for continued active service.  The applicant was informed that this approval did not preclude future imposition of a denial of continued active duty service should his record continue to warrant it.  However, he was told the subject LOR could no longer be the sole basis for a future QMP determination.  

6.  On 5 January 2001, the applicant petitioned the DASEB for removal of the LOR from both his performance fiche and the restricted portion of his fiche.  On 11 April 2001, the DASEB denied the removal of the LOR from the applicant's OMPF.

7.  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 2-4 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, to include the DASEB.

8.  Army Regulation 600-37 (Unfavorable Information) 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 LOR's 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 US Total Army Personnel Command (PERSCOM), 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.  Letters filed in the OMPF will be filed on the performance fiche (P-fiche).  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.

DISCUSSION AND CONCLUSIONS:

1.  The LOR, dated 27 July 1999 was properly imposed as an administrative measure and was properly filed in accordance with applicable regulations.

2.  Both the General Officer who issued the filing instructions for the LOR and the applicant's current General Officer agree that the intended purpose of the LOR has been served and that the transfer of the LOR from the performance portion of the applicant's OMPF would be in the best interest of the Army and the applicant.  

3.  The applicant demonstrated a serious lack of judgment and integrity in committing the offense for which the LOR was issued.  The applicant does not deny he committed the offense; he merely states that he has learned from the experience and put the incident behind him.  Granting the applicant's request would have the effect of officially denying the incident ever occurred.  This is not acceptable.

4.  The applicant successfully completed his tour as a drill sergeant without further incident; the QMP bar to reenlistment has been removed; and the applicant has sustained superior performance since the incident.  Transfer of the LOR, dated 27 July 1999, to the restricted portion of his OMPF would allow the Army to utilize the applicant's potential and allow the applicant to compete for advancement and positions of increased responsibility.

BOARD VOTE:

__rjw___  ________  __mhm___  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  __rld___  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the LOR issued to the individual on 27 July 1999, to include all copies and all associated documents, from the individual's performance fiche and transferring same to his restricted fiche.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to complete expunction of the LOR issued on 27 July 1999 from the individual's OMPF be denied.  

			Raymond J. Wagner
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003087979	
SUFFIX		
RECON		
DATE BOARDED	20040219	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	134.0100	
2.		
3.		
4.		
5.		
6.