PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            19 April 2000
	DOCKET NUMBER:   AR1999033947

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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 three separate applications, the removal of three letters of reprimand (LOR) from his Official Military Personnel File (OMPF). 

3.  The applicant states, in effect, that the LOR dated 2 February 1989 pertains to another officer and was improperly filed in his OMPF and that the other two LOR were supposed to be removed after 3 years and yet still remain in his OMPF.  He further states that the reprimands dated 20 January 1989 and 26 August 1989 were imposed against him due to the actions of another individual and after an investigation was conducted, he was told to accept the LOR and in each case told that it would be removed from his records after 3 years.  He continues by stating that he is preparing his record for promotion consideration to the rank of major and that their presence will hinder his military career in the USAR.

4.  The applicant’s military records show that on 30 January 1989, while serving as a second lieutenant in Germany, he received a general officer LOR for wrongfully having knowledge of a soldier possessing alcohol in an ambulance while he was the officer in charge of a range and for impeding the investigation of the incident by withholding vital information from the investigating officer.  The LOR advised him that the LOR was administrative in nature and was not punishment under the UCMJ.  Additionally, he was advised that the imposing officer (a major general) intended to place the LOR in his OMPF and that a final decision would be deferred in order to allow him (the applicant) to submit matters in his own behalf.  The applicant elected to submit a statement in his own behalf in which he disputed the events that occurred but accepted responsibility for his mistakes.  He also stated that the filing the LOR in his OMPF would severely impact his ability to prove himself in the future.  After reviewing the applicant’s rebuttal, the imposing officer directed that the LOR be filed in his OMPF.

5.  On 26 August 1989 the applicant’s commander (a colonel) imposed a LOR against the applicant for compromising his integrity on several occasions with enlisted personnel.  He was also advised that the LOR was administrative in nature and that a recommendation would be made to the commanding general that the LOR should be filed in his OMPF.  He submitted a statement in his own behalf in which he denied taking money from enlisted soldiers and lying to a superior commissioned officer.  He also stated that he would not put himself in another position in which allegations could develop and requested that the commander file the LOR in his local file so that he could prove his professional abilities.  The commanding general directed that the LOR be filed in his OMPF. 

6.  The third LOR filed in the applicant’s OMPF pertains to another individual and was issued on 7 February 1988 at Fort Campbell, Kentucky for an incident of driving while intoxicated. 

7.  On 14 May 1990 he was honorably released from active duty in the rank of second lieutenant under the provisions of Army Regulation 635-100, chapter 3, due to failure of selection for active duty list promotion.  He was transferred to the USAR Control Group (Annual Training) and had served 2 years and 23 days of total active service.

8.  There is no indication in the available records to show that the applicant ever applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the contested reprimands transferred to the restricted fiche of his OMPF based on intent served.  There is also no indication that he has attempted to have the LOR pertaining to another officer administratively removed from his OMPF.

9.  Army Regulation 600-37 serves as the authority for filing of unfavorable information in the OMPF.  It states, in pertinent part, that a nonpunitive MOR or admonition will be filed in the OMPF only when directed by a general officer or the officer having general court-martial jurisdiction over the recipient.

10.  Army Regulation 27-10 provides policies and procedures pertaining to the administration of military justice within the Army. It states, in pertinent part, that nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty adjusting to military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among nonpunitive measures are administrative reprimands and admonitions and they must contain the statement indicating that they are imposed as an administrative measure and not as punishment under the UCMJ.

CONCLUSIONS:

1.  The LOR issued on 7 February 1988 at Fort Campbell, Kentucky clearly pertains to an officer that is not the applicant and is improperly filed on the applicant’s OMPF.  Therefore, it would be in the interest of justice to remove the LOR as well as the acknowledgement dated 2 March 1989 and the filing decision dated 23 March 1989.

2.  However, the reprimands dated 20 January and 26 August 1989 were properly imposed in compliance with applicable regulations and are properly filed in the applicant’s OMPF.

3.  The applicant’s contention that he was informed that the reprimands would be removed after 3 years appears to be without merit and is not supported by the evidence of record.  There is no indication that he was informed at the time the reprimands were imposed that they would be removed after 3 years and his rebuttals to the reprimands at the time indicate that he was aware that the presence of the reprimands would hinder his future in the Army.

4.  The applicant has failed to show that the two reprimands he received were improperly imposed or improperly filed in his OMPF.

5.  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 from the records of the individual concerned the LOR dated 7 February 1988 and all allied documents that pertain to an individual other that the applicant.

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

BOARD VOTE:  

___eja___  ___vbc__  __jph ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____James P. Huber_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999033947	
SUFFIX		
RECON		
DATE BOARDED	2000/04/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  280	126.0300/REM LOR	
2.		
3.		
4.		
5.		
6.