APPLICANT REQUESTS:  In two applications, the removal of a memorandum of reprimand (MOR) dated 12 June 1992 and an officer evaluation report (OER) covering the period 1 June 1992 through 13 June 1992 from his Official Military Personnel File (OMPF), or as an alternative that they be transferred to the restricted fiche of his OMPF.

APPLICANT STATES:  That the statements contained in both the MOR and OER are false and unproven and that because they were not properly referred, they violate the basic tenet of due process.  He further states that the MOR was unjustly administered and illegally filed in his OMPF without his being afforded the opportunity to review all of the available evidence against him and that his rebuttal was not considered before a decision to file the MOR was made.  He continues by stating that he did not strike the trainee as claimed, but simply tapped him on the chest to get his attention.  He goes on to state that the commanding general (CG) had no authority to direct the filing of the MOR in his OMPF because he (the applicant) was not under the CG’s command at the time he directed it to be filed in the OMPF. He continues by stating that the contested OER contains unproven derogatory statements and that his performance was improperly evaluated.  He also contends that the contested OER improperly indicates that a support form was initiated, when in fact there was never a support form completed, nor were there any goals or objectives discussed.  Therefore, he exceeded all requirements and the report should reflect such.  In addition, the investigation conducted into the incident for which he received the MOR and contested OER was not only not thorough but inconclusive as well.  He also states that he was not afforded sufficient time to respond to the contested OER which denied him due process, that the incident for which he was accused was in fact allowed under the applicable regulations, and that the OER was unduly harsh considering the circumstances.  In support of his application he submits a copy of the regulation applicable to the use of physical contact with trainees at Fort McClellan, Alabama.
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was commissioned as a USAR second lieutenant on 6 May 1983 and called to active duty on 11 January 1984. He continued to serve until he was honorably released from active duty in the rank of first lieutenant on 3 August 1987 and was transferred to the USAR Control Group (Reinforcement).

On 10 June 1992, while serving on active duty for training (ADT) as a company commander (captain) of an initial entry training military police company at Fort McClellan for the period 1 June through 13 June 1992, a trainee made an allegation that the applicant had struck him in the chest with the back of his hand on 9 June 1992.

On 11 June 1992 an informal investigation was conducted under the provisions of Army Regulation 15-6 to determine the validity of the allegations.  The investigating officer determined, after interviewing the parties concerned (to include the applicant), in effect, that the trainee in question was sitting beside the applicant at the coaches/scores table behind a firing point and that after determining that the trainee was not calling out targets as the other coaches were doing, he struck the trainee in the chest in order to get the trainee’s attention.  Although there were differences in the statements from the trainee and the applicant and the amount of force used could not be determined, the investigating officer concluded that there was no excuse for the applicant’s behavior.  

Consequently, on 12 June 1992, the day before the applicant completed his ADT, his battalion commander issued him a MOR for improperly and unlawfully striking a trainee under his supervision.  He further indicated that he intended to recommend that the MOR be filed in the applicant’s OMPF and that he had 10 working days to submit matters in his own behalf.

The applicant also received the contested OER on the same day.  It was a release from ADT report for the period 1 June 1992 through 13 June 1992.  The report evaluated him as a captain while performing as a company commander of a military police training company.  The report was considered adverse and as such was referred to the applicant on 12 June 1992.  The memorandum for referral also informed the applicant that should he desire to submit comments in his behalf, they would not constitute a request for a commander’s inquiry or an appeal and that such a request would have to be submitted separately.

In part IVa of the OER, professional competence, his rater assigned him a three under “Displays sound judgment” and ones in the remaining thirteen areas.  In part Vc, comments on specific aspects of performance, the rater commented that the applicant “violated TRADOC and Fort McClellan regulations by physically striking a trainee.”  The applicant’s performance was rated by his rater as having “Usually exceeded requirements” and the rater recommended that the applicant be promoted with his peers and indicated that the applicant’s potential for service lies in positions without direct supervision of soldiers.

The senior rater (SR), a lieutenant colonel, placed the applicant in the fourth block of part VIIa, the potential evaluation portion of the OER.  This placed the applicant below the COM on the SR’s profile (although the applicant was the only officer rated in the SR’s profile, he indicated that his center of mass (COM) was the second block).  The supporting comments indicate, in effect, that the applicant exercised poor judgment by striking a soldier with an open hand, that he should not be placed in leadership positions, and that he should not be promoted at that time.

The applicant submitted rebuttals to both the MOR and the contested OER on 19 June 1992, the contents of which were essentially the same.  In his rebuttals, he contended that the improper conduct for which he had been accused had not occurred and that the investigation that was conducted, though not thorough, was inconclusive in its findings.  He further contended that he did not violate the regulations cited because the regulations allowed for contact with trainees to correct mistakes.  Furthermore, his performance was not properly evaluated, in that he never signed a support form or discussed goals and objectives, therefore he exceeded all requirements.  He went on to contend that he used sound judgement and that the contents of both the MOR and contested OER were based on untrue and unproven allegations.  

After reviewing the applicant’s rebuttal to the MOR, the imposing commander (battalion commander and applicant’s SR) recommended that the MOR be filed in the applicant’s OMPF.  The brigade commander also supported the recommendation and forwarded it to the CG.  Although undated, the CG directed that the MOR be filed in the applicant’s OMPF.  There is no indication in the available records to show that the applicant ever petitioned the Department of the Army Suitability Evaluation Board (DASEB) to have the MOR moved to the restricted fiche of his OMPF.

The applicant appealed the OER in question to the ARPERCEN Evaluation Report Appeals Branch.  However, it was returned to the applicant without action on 16 February 1996 because he failed to submit sufficient evidence to show that the contested report was inaccurate. 

Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  It states, in pertinent part, that when a soldier leaves a chain of command after a commander has announced the intent to impose a reprimand, but before the reprimand had been imposed, the action may be processed to completion by the losing commander.  When completed, the letter will be forwarded to the gaining commander with a recommendation for filing.  The final filing determination will be made by the individual’s current gaining commander.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 5-32, states, in pertinent part, that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

Fort McClellan Regulation 632-1 states, in pertinent part, that an officer is authorized to use his hands to correct a trainee only when the trainee clearly demonstrates that he is unable to execute a proper movement, assume a proper position, or adjust his equipment.  The use of the hands will be accomplished in a military manner, befitting the dignity of both the trainer and the trainee. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s contention that the MOR was unjustly imposed against him and that the CG did not have the authority to direct the filing of the MOR is without merit.  The applicant was afforded the opportunity to submit matters in his own behalf and when he did so, he apparently failed to convince the imposing commander that his conduct was appropriate.  Additionally, the MOR had been imposed prior to the applicant’s departure and he had been afforded the opportunity to submit matters in his own behalf before he departed the losing command.  Therefore, it was appropriate in this case for the commander who had knowledge of the incident to complete the action, especially given the relationship the commander of the ARPERCEN would have had with the applicant vice the losing commander.

2.  The applicant’s contention that he was denied sufficient opportunity to submit matters relevant to his appeals and that he was denied due process is also without merit.  The applicant has provided no evidence to show that he was denied sufficient opportunity to submit matters in his own behalf or was denied due process.

3.  The applicant has failed to convince the Board that the imposition and filing of the 12 June 1992 MOR constitutes an error or injustice or that removal is warranted.

4.  Although the applicant would have the Board believe that his actions were appropriate under the circumstances, the Board is not convinced that such is the case.  The applicant admitted that he was sitting beside the trainee at the time he hit or tapped him in the chest.  It appears to the Board that the applicant could have taken less physical steps, such as waving his hand in front of the trainee to get his attention, and that physical contact, especially the type used, was not necessary under the circumstances.  Additionally, it clearly does not meet the intent of the regulation allowing physical contact with trainees.

5.  Therefore, the Board is convinced that the appraisal of the applicant’s performance during the rating period represents the considered judgment of the rating officials at the time of preparation.  Therefore, there is no good reason to remove the OER from his records.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director