PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:           6 July 2000                   
	DOCKET NUMBER:   AR1999033116

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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, in effect, removal of a letter of reprimand (LOR), dated 24 July 1992 from his official military personnel file (OMPF).

3.  The applicant states, in essence, that he was never tried or convicted of driving under the influence (DUI).  Tickets (traffic citations) were issued for a vehicular accident and an open container.  He admits that an incident happened and he hit the back of another vehicle.  However, the applicant states that he was never cited for DUI by the military police.  However, he did have to attend a “ADAPC”,  presumably a drug/alcohol counseling program of some sort. In 1995, he received a notice of a Department of the Army (DA) imposed bar to reenlistment, imposed under the Qualitative Management Program (QMP).  He appealed the bar, which was granted in 1996.  Some of the documents with this appeal were used in his appeal of the bar.  Since the incident, his record of service has been “nothing less than exceptional.”  He was an honor graduate of a Drill Instructor School in 1992, he exceeded the standards for a Master Fitness Course in 1994 and then served successfully as a drill instructor, an airborne instructor and an operations sergeant for the Pathfinder School, all at Fort Benning, Georgia.  His Noncommissioned Officer Evaluation Reports (NCOER’s) have been excellent during this entire period of service.  He submits a copy of a memorandum he submitted in 1996 requesting transfer of the LOR to the restricted portion (r-fiche) of his OMPF, which was denied.  In summary, the LOR keeps him from advancing further in the Army. 

4.  The applicant’s military records show that he was serving on active duty in July 1992, when he was involved in a vehicular accident on Fort Story, Virginia, on 12 July 1992.  He was assigned to the 82nd Airborne Division at the time, with the rank of staff sergeant, pay grade E-6, with a date of rank of 1 August 1989.  The citations provided by the applicant to the Board, all issued to him to appear before the United States Magistrate Judge, Norfolk, Virginia, included being involved in a traffic accident;  having an open container in his vehicle;  fleeing the scene of an accident;  and no post decal on his automobile.  On 2 November 1992, he pled guilty and was found guilty of a reckless driving charge and was sentenced to a fine of $150.00 and a $25.00 special assessment (required to be imposed by the court when sentencing for violations of Class A misdemeanors), for a total of $175.00. 

5.  On 24 July 1992, his division commander, a major general, issued a LOR to the applicant, in which he was cited for a driving his motor vehicle while impaired (DWI) on 12 July 1992.  His blood alcohol content or breathalyzer test (BAT) results were measured at 0.14 percent;  any amount in excess of 0.10 percent is considered DWI.  The applicant submitted a rebuttal to the LOR, but it is not a matter of record.  His chain of command recommended that it be filed in his OMPF.  The commanding general concurred.  It is so filed in the performance section (p-fiche) of his OMPF.  

6.  On 25 April 1996, he appealed the LOR and requested transfer of the LOR from his p-fiche to the restricted section (r-fiche) of his OMPF.  On 28 June 1996, the Department of the Army Suitability Evaluation Board (DASEB), in the office of the Deputy Chief of Staff for Personnel, denied his appeal.  A copy of this denial is on the p-fiche in his OMPF, but not the appeal documents.  It was determined that it was in the best interest of the Army and the individual that the LOR remain on his p-fiche.    

7.  Since the LOR was imposed in 1992, the applicant’s records show that he has performed well.  He attended the Drill Instructor School, performed duties as a weapons squad leader, a drill instructor, a supply sergeant, and as an operations sergeant at Fort Knox, Kentucky, and at Fort Benning, Georgia, where he is currently serving.  His NCOER’s have been in the highly satisfactory range, with his raters consistently showing that the was among the best and his senior rater showing that he had successful/superior ratings for his duty performance and his promotion potential.  Several NCOER’s contain statements from the senior rater that he should be promoted to the rank of sergeant first class and attend the Advanced Noncommissioned Officer Course. 

8.  Also during the period 1992 through 1999, he had no other recorded indisciplines and was permitted to reenlist in 1996 after completion of his prior 
6-year enlistment.  He also has earned the Meritorious Service Medal (MSM) for service between 1989 and 1993 (during which the incident in question occurred); a second MSM for duties between 1993 and 1995;  the Army Achievement Medal; the fourth and fifth clasps to the Army Good Conduct Medal, for the periods of service 1991-1994 (during which the incident in question occurred) and 1994-1997; and three certificates of achievement.    

9.  The applicant’s request to this Board has been referred to the DASEB for an advisory opinion.  That board recommended disapproval of the applicant’s request, in that it is not convinced that the LOR has served its purpose.  That board stated, in essence, that the applicant previously requested transfer of the LOR to his r-fiche, which was denied by that board in 1996.  He shows no remorse or recognition that he made a mistake, and he has provided no evidence to show he has dealt with what appears to be a serious alcohol problem, (presumably based on a prior DUI incident in 1987, wherein he received a nonjudicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice).  He also has not provided any evidence to invalidate the premise of the DWI contention or to the .14 BAT results.  He submits no letters of support from his chain of command or the issuing authority.  Therefore, the DASEB opines that the transfer of the LOR to the r-fiche at this time is not justified as the intent has not been served.

10.  This opinion was referred to the applicant for review and comment, but he did not respond.  
11.  Army Regulation 600-37, in pertinent part, sets forth the policy for the types of unfavorable information which may be filed in an OMPF.  Paragraph 3-4 of the regulation provides for the procedures for filing of an LOR.  Although issuing an LOR is an administrative measure, the recipient has the right to review and comment on the letter, and any documents the letter was based upon, prior to it being forwarded to the officer having approval authority for filing it in the OMPF.  In most cases, this is the first general officer in the recipient’s chain of command. 

12.  Army Regulation 640-10 provides the policy and guidance for the creation, maintenance and disposition of the OMPF.  The OMPF is normally 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.  Letters or memoranda of reprimand filed in accordance with Army Regulation 600-37, are normally filed on the p-fiche.  

CONCLUSIONS:

1.  The applicant was given an LOR in July 1992 in accordance with pertinent Army regulations, with no indication of procedural errors which would tend to violate his rights.

2.  If the applicant believed that the information concerning the blood alcohol level test (BAT) was in error or did not exist, he should have resolved it at the time the LOR was issued, not at this late date.  In the absence of evidence to the contrary, the Board concludes that the test results were valid.

3.  Whether or not a traffic citation was issued for DUI is moot.  He was only convicted of reckless driving, a Class A misdemeanor, by the US District Court, and not of the several other citations issued at the time of the incident on 12 July 1992.

4.  However, the Board also takes note of the applicant’s highly satisfactory record of service since 1992.  He has completed one or more Army schools, his duty performance has been highly satisfactory, he has been issued several awards for outstanding duty performance, he has received two additional awards of the Good Conduct Medal, he has been permitted to reenlist and a DA imposed bar to reenlistment was removed from his records.  He has had no other recorded indisciplines in 7 years and certainly there is no evidence that he has had any additional alcohol related incidents.

5.  Notwithstanding the opinion of the DASEB, this Board concludes that the LOR has served its purpose.  The applicant has successfully performed his military duties at a highly satisfactory level for at least 7 years.  He has overcome his mistake.  

6.  Therefore, it would be appropriate at this time to transfer the LOR to the 
restricted portion of his OMPF, the r-riche.  While he has requested total removal of the LOR from his record, this would only be appropriate if the LOR was in error.  He has not proven this and therefore, the Board finds that a record of the incident should be retained, but only where it will not have an adverse affect on the future management of his military record.

7.  Further, since there is no evidence of error, 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.  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 from the performance portion (p-fiche) to the restricted portion (r-fiche) of the OMPF of the individual concerned the LOR, dated 24 July 1992, and all documents related thereto, to include these proceedings. 

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

BOARD VOTE:  

__cmf___  __emw___  __jpi___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Calvin M. Fowler____
		        CHAIRPERSON

INDEX

CASE ID	AR1999033116	
SUFFIX		
RECON		
DATE BOARDED	20000706	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT IN PART	
REVIEW AUTHORITY	DASA	
ISSUES         1.	134.01	
2.		
3.		
4.		
5.		
6.