APPLICANT REQUESTS: That a letter of reprimand be removed from his OMPF (official military personnel file).
APPLICANT STATES: That the underlying basis for the letter of reprimand was untrue. The charge against him was dismissed.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant is a career soldier who entered the Army on
22 August 1979 and has attained the rank of Staff Sergeant, pay grade E-6.
On 28 November 1995 the applicant received a letter of reprimand for soliciting an undercover officer posing as a prostitute on 16 October 1995 during the duty day while in uniform. The applicant was given seven days to submit a rebuttal to the letter of reprimand. He stated that he had read and understood the unfavorable information presented against him and that he would make a rebuttal. He failed to do so, and on 20 December 1995, the commanding general of the 82nd Airborne Division, a major general, directed that the letter be filed in the applicants OMPF.
On 2 December 1996 the applicant appealed the letter of reprimand to the DA Suitability Evaluation Board (DASEB), requesting that the letter be withdrawn from his OMPF, or as an alternative, be transferred to the restricted portion of his OMPF. The applicant stated that he was stopped by the Fayetteville Police Department on 14 September 1995 for soliciting an undercover police officer posing as a prostitute; thus, the date in the letter of reprimand was wrong. Furthermore, he was not on duty during that day, the company having been given the day off because of a late night jump conducted the evening before. He adamantly denied soliciting anyone for anything on 14 September. He went to court three times to clear his name. The charge was finally dismissed on 22 February 1996. The letter of reprimand is unjust because he was never found guilty.
The applicant submitted a computerized printout purporting to show that the charge of soliciting for prostitution was dismissed. That conclusion cannot be discerned from the information on the printout. However, the printout does indicate that the applicant committed the offense on
14 September, not 16 October 1995.
On 15 January 1997 the DASEB denied the applicants request to transfer the letter of reprimand from the performance portion of his OMPF to the restricted portion of his record.
In th processing of this case an advisory opinion (COPY ATTACHED) was obtained from the legal advisor to the Army Review Boards Agency. That advisor recommended that the letter of reprimand be changed to reflect that the applicant was stopped by the police on 14 September 1995, rather than 16 October 1995. She continued by saying that the applicant did not provide sufficient evidence to warrant any other relief.
Army Regulation 640-10 sets forth the basic authority for filing of documents in the OMPF (official file). Table 4-1 of that regulation provides, in pertinent part, that administrative letters of reprimand or admonition of a nonpunitive nature would be filed on the performance fiche of the OMPF only if the provisions of Army Regulation 600-37 had been complied with.
Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF. Paragraph 3-2 of that regulation states that unfavorable information will not be filed in an official personnel files unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing to make such a statement. Paragraph 3-4 of that regulation provides, in pertinent part, that a nonpunitive
letter of reprimand or admonition would be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The administrative letter of reprimand was properly imposed as an administrative measure. The applicant was afforded the opportunity to rebut the letter but neglected to do so. The letter of reprimand was properly filed on the performance fiche of the OMPF in accordance with applicable regulations.
2. The applicant has failed to convince the Board that the intended effect of the letter of reprimand has been served and that the removal of the letter would be in the best interest of justice. Therefore, there is no basis for removing the document from his official file.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
4. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
NOTE: The U.S. Army Enlisted Records and Evaluation Center will be directed to amend the first paragraph of the
28 November 1995 letter of reprimand to substitute the date, 14 September 1995, in place of the date,
16 October 1995.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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