PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 11 June 2002
         DOCKET NUMBER: AR2002070258


         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
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Mr. Harry B. Oberg		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, that the Letter of Reprimand (LOR), dated 9 April 1996, and affiliated correspondence be transferred to the restricted fiche of his Official Military Personnel File (OMPF) or removed from his OMPF.

3. The applicant states it is not in the best interest of the Army or himself to allow these items to remain in his OMPF. He states his Noncommissioned Officer Evaluation Reports (NCOER) and record of performance since this infraction show he is an excellent soldier and noncommissioned officer (NCO). He regrets this incident, however, he has matured and learned from this experience. He also states the intended purpose of this disciplinary action has been served and asks that these documents be removed so he can continue to be promoted and allowed to become a greater asset to the Army. In support of his application, he submits a copy of the LOR with five endorsements and his letter of rebuttal, dated 8 April 1996.

4. The applicant’s military records show he served as a Reserve commissioned officer not on active duty from May 1983 through May 1995. He enlisted in the Regular Army on 4 May 1995 and has continued to serve on active duty. He is currently assigned to Hawaii in the rank of staff sergeant.

5. On 9 April 1996, the applicant received a general officer LOR for driving while impaired and for refusing to submit to a mandatory breath analysis test at the time of his arrest on 22 March 1996. The LOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice. The general officer stated that it was his intent to direct the filing of this letter in the applicant's OMPF. The LOR was referred to the applicant for acknowledgement and rebuttal comments.

6. The applicant acknowledged receipt of the LOR, indicated that he understood the unfavorable information presented against him, and elected to submit a rebuttal. In his rebuttal, the applicant requested that the LOR not be filed in his OMPF but filed locally in his Military Personnel Records (MPRJ).

7. The applicant's unit commander recommended that the LOR be filed in his OMPF because of the serious nature of the offense. His battalion and brigade commanders reviewed the LOR and endorsements and recommended the LOR be filed in the applicant's OMPF. Subsequently, the general officer directed that the LOR be filed in the applicant's OMPF. Records show the LOR and all related documents were filed on the performance portion of the applicant's OMPF.

8. The applicant's personnel records show that he successfully completed the Basic Noncommissioned Officer Course in June 1997 and the Jumpmaster Course in February 1999.

9. The applicant has received four awards of the Army Commendation Medal for meritorious achievement and meritorious service; five awards of the Army Achievement Medal; one award of the Armed Forces Expeditionary Medal for service in Southwest Asia; and two awards of the Good Conduct Medal for the periods 4 May 1994 through 3 May 1998 and 4 May 1998 through 3 May 2001.

10. The applicant has received top block senior rater profiles on his NCOER's during the period May 1997 through June 2001.

11. There is no evidence of record which shows that the applicant petitioned the DA Suitability Evaluation Board for transfer of the LOR to his restricted fiche.

12. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by : the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

13. Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. Chapter 3 covers unfavorable information in official personnel files. Paragraph 3-4 applies to filing of nonpunitive administrative letter of reprimands or censure in official personnel files. Paragraph 3-4(b) states that a letter, regardless of the issuing authority may be filed in the OMPF maintained by the U.S. Total Army Personnel Command, the Army Reserve Personnel Command, or the proper State Adjutant General (for Army National Guard Personnel) only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual. Letters filed in the OMPF will be filed on the performance portion (P-fiche). The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.

CONCLUSIONS:

1. The applicant received a general officer LOR, dated 9 April 1996, for driving while impaired and for refusing to submit to a mandatory breath analysis test. The LOR with allied documents were properly filed on the performance fiche of the applicant's OMPF in accordance with applicable regulations.

2. Subsequent to receiving the LOR in question, the applicant has received excellent NCOERs and numerous awards for meritorious service and meritorious achievement.

3. Considering the nature of the offense involved and the applicant's commendable performance during the past several years, it appears that the LOR has served the purpose for which it was intended.

4. While there does not appear to be any legal basis for removing the LOR, there are equitable reasons for its transfer to the restricted portion of his OMPF. Therefore, in the interest of justice, it would be appropriate to transfer the LOR and allied documents from the performance section of the applicant's OMPF to the restricted section of 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 transferring the LOR, dated 9 April 1996, and all related documents from the performance fiche to the restricted fiche of the OMPF of the individual concerned.

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

BOARD VOTE:

FE______ RA______ HBO___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Fred Eichorn__________
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002070258
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020611
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT IN PART
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	126.0400
2.
3.
4.
5.
6.