MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 April 2002
         DOCKET NUMBER: AR2002066984

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Roger W. Able		Member
Ms. Karen Y. Fletcher		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that a Memorandum of Reprimand (MOR) be removed from his Official Military Personnel File (OMPF); or that the MOR be placed in the Restricted (R-Fiche) portion of the OMPF.

APPLICANT STATES: In effect, that the MOR, dated 8 February 2002, is in error for several reasons. Although an independent investigation exonerated him, it was set aside and another biased investigation was conducted. The Investigating Officer (IO) was the supervisor of the complainants, in his battalion, and under the supervision of the Battalion Commander (BC) that issued the MOR. The IO’s findings were unsubstantiated and the complaints uncorroborated. In addition, he believes that the MOR is illegally retaliatory because it was initiated after he filed an Inspector General (IG) complaint on the matter.

EVIDENCE OF RECORD: The applicant's military records show:

He is currently a staff sergeant/E-6 (SSG/E-6) serving on active duty serving in Europe. In 1999, while serving at Hunter Army Airfield, Georgia, allegations of cruelty and maltreatment were made against him by junior female soldiers of his organization. An investigation into the allegations against him was conducted and the IO substantiated the allegation that he violated the Army Sexual Harassment Policy and Article 93 (Cruelty & Maltreatment) of the Uniform Code of Military Justice (UCMJ).

On 27 December 1999, an administrative law attorney from the office of the Staff Judge Advocate (SJA) conducted a legal review of the investigation conducted against the applicant based on allegations of inappropriate conduct and maltreatment. The SJA attorney found the proceedings complied with legal requirements, sufficient evidence existed to support the findings, and the recommendations were consistent with the findings.

On 8 February 2000, based on the completed investigation, the applicant received a MOR from his lieutenant colonel BC that reprimanded him for his misconduct. The BC commented that the reprimand was based on an equal opportunity complaint against the applicant and the substantiated findings of an investigation into his maltreatment of subordinate soldiers and his failure to obey a lawful order.

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On 1 March 2000, the applicant submitted a rebuttal to the MOR, in which he provided his version of the events in question, and he rebutted the testimony that his subordinate soldiers had made against him. He also indicated that on
30 October 1999, an informal investigation conducted by a different IO that did not substantiate same cruelty and maltreatment findings.

However, being dissatisfied with the earlier investigation, the BC ordered another investigation, which was conducted by an IO who was the supervisor of the soldiers who made the allegations against him, and who was under the command of the same BC. He stated that this placed the neutrality of the second IO in question and raised questions of command influence. Based on these factors, the applicant requested the MOR not be filed in his OMPF.

On 22 March 2000, the applicant’s defense counsel provided a memorandum pertaining to the investigation conducted on the applicant. He commented that he found several legal faults, which included that the IO should not have been appointed to perform the investigation since she was a member of the same battalion as the applicant. Further and more importantly, the IO was the supervisor of the two chief complainants. As such, the IO was not a neutral party, which tainted the entire investigation. This taint is shown in that the IO substantiated in full the uncorroborated complaints against the applicant despite there being contradictory evidence. Due to the lack of neutrality by the IO, and the lack of basis for many if not all of the findings, the defense counsel concluded that the findings and recommendations should be disregarded. Counsel also recommended that should the chain of command wish to further pursue this matter, they should appoint an IO who did not have a conflict of interest and who could perform a proper inquiry.

On 17 May 2000, the applicant appealed to the group commander and requested that the MOR not be filed in his OMPF. He presented primarily the same argument in support of this request as he had provided in his initial appeal of the MOR. The initial filing determinations made in the applicant’s command are not contained in the record or the evidence made available to the Board.

On 21 February 2001, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB), requesting that the MOR be removed from, or moved to the R-Fiche portion, of his OMPF. He provided the first two MOR rebuttals he submitted and he restated his argument that the second investigation conducted was invalid. He further commented that after the first investigation was rejected and the BC appointed a second IO he complained to the IG, which resulted in the BC initiating the MOR. He also stated that the MOR should be removed from his OMPF because it was initiated in reprisal for his complaining to the IG; that if the MOR is not removed from his OMPF, it should be moved to the R-Fiche because its factual basis was suspect; and that at a minimum, his two rebuttals should be filed in the OMPF with his MOR.
On 11 June 2001, the applicant was notified by the Assistant President, DASEB, that his appeal had been partially approved and that his rebuttal statements would be filed in the OMPF along with the MOR. The DASEB concluded that there was insufficient justification for removing the MOR from his OMPF because the applicant submitted only his statements and a statement from his defense counsel. Further, transfer of the MOR to his R-Fiche was not justified because there was insufficient evidence in the OMPF to support it and the applicant failed to provide letters of support or proof of rehabilitation. The DASEB did conclude that the applicant’s two rebuttal statements should be filed in the OMPF next to the MOR.

Although it is not clear why, the OMPF provided to the Board, which was prepared on 24 January 2002, has the MOR, along with the applicant’s rebuttals and the DASEB documents, filed in the R-Fiche portion of his OMPF.

Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. Paragraph 7-2 (Policies and Standards) states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

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 Board notes the applicant’s contention that the MOR in question should be removed from his OMPF because is was illegal and based on a reprisal for his complaining to the IG; and that the investigation that was used as a basis for the MOR was biased. However, the Board concurs with the findings of the DASEB that the applicant failed to provide sufficient evidence to support these claims.

2. By regulation, once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

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3. The evidence of record confirms that the investigation conducted on the applicant which resulted in the MOR was determined to be legally sufficient by command legal authorities prior to the MOR being initiated. Further, by the applicant’s own admission, he did not contact the IG until after the IO was appointed, and he has failed to provide any independent documentary evidence to support his claim of reprisal. Therefore, the Board finds that relief beyond that granted by the DASEB is not warranted.

4. However, the Board notes that the OMPF provided to the Board, dated
24 January 2002, the MOR in question is filed in the R-Fiche, along with the applicant’s rebuttal statements and the DASEB documents, and it elects to take a neutral position and make no recommendation in regard to this filing.

5. 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

__AAO__ __RWA__ __KYF__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002066984
SUFFIX
RECON
DATE BOARDED	2002/04/04
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2.
3.
4.
5.
6.