MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002071763

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Donald P. Hupman		Member
Ms. Paula Mokulis		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 his two Memorandums of Reprimand
(MOR) be removed from his Performance (P) fiche, Disciplinary Data Section, and transferred to his Restricted (R) of his Official Military Personnel File (OMPF).

APPLICANT STATES: That his two MORs have served their purpose, remained in his record for more than 4 years, and since receiving his MORs his military performance has been nothing but stellar. He believes that it would be in the best interest of himself and the US Army for his two MORs to be transferred or removed completely. In support of his application, he submits copies of: a personal letter petitioning for his transfer of MORs; two character references from former leaders petitioning for transfer of his MORs; two noncommissioned officer evaluation reports (NCOERs); four DA Forms 638 (Recommendation for Award); two orders awarding him the second and third award of the Good Conduct Medal; and a copy of his appeal from the Department of the Army Suitability Evaluation Board (DASEB).

EVIDENCE OF RECORD: The applicant's military records show he enlisted on
2 September 1992, as cannon crewmember. He continues to serve on active duty in the rank of staff sergeant (SSG).

On 11 July 1997, an administrative MOR was tendered to the applicant by the
Commanding General (CG) of Fort Riley, Kansas for driving under the influence (DUI) of alcohol on 4 July 1997. This MOR was imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military justice (UCMJ). The CG stated that it is his intent to file this memorandum in the P fiche of the applicant’s OMPF. The memorandum was referred to the applicant for comment. The applicant acknowledged receipt of the LOR and was informed to submit any matters in rebuttal, extenuation, or mitigation through his chain of command. He elected not to submit statements in his own behalf. On 15 August 1997, the CG recommended that the applicant’s LOR be filed on his OMPF in accordance with Army Regulation 600-37, paragraph 3-4b.

On 31 July 1997, another administrative LOR was tendered to the applicant by the CG of Fort Riley, Kansas for driving under the influence (DUI) of alcohol on
26 January 1997. The applicant acknowledged receipt of the LOR and elected not to submit statements in his own behalf. On 28 November 1997, the CG recommended that the applicant’s LOR be filed on his OMPF.

On 7 February 2001, the applicant petitioned the DASEB for transfer of his administrative MORs to his R fiche.




On 9 April 2001, the DASEB reviewed the applicant’s request for transfer of his two General Officer Memorandum of Reprimand (GOMORs). The DASEB stated that the applicant provided no supporting statements from the issuing authority of the GOMOR or any other personnel in his chain of command. The applicant offered his record as evidence to justify transfer. After a review of his overall record, the DASEB voted to deny his appeal. The DASEB was not convinced that the purpose of the GOMOR had been served, that the applicant is undisciplined and may have an alcohol problem, and that it is not in the Army’s best interest to remove the GOMORs to his R fiche at this time. The DASEB further stated that a request for reconsideration was authorized upon presentation of new evidence.

The applicant submitted a personal letter petitioning his transfer of his GOMORs, dated 25 February 2002. He stated that his GOMORs had served their purpose and a field grade Article 15 was also given for his infractions; however, his OMPF failed to show an Article 15, UCMJ, for his infractions. His performance for the past 5 years has been excellent and he is one of the top noncommissioned officer’s (NCOs) in his battalion. He has received several awards for his achievements and service and has enhanced his career by winning several competitions. He is a 27-year-old SSG and is serving as an ammunition section chief at Fort Carson, Colorado. He was between the ages of 22 and 23 at the time of his incidents. He has realized the severity of his mistakes and has deeply regretted his negligence. He apologizes for the choices he made and the people he has hurt. He makes no excuse for the stupidity and ignorance it took to make those mistakes; however, these mistakes should not haunt him for the rest of his career.

The applicant submits two character references from former leaders that attest to his character. The letters state that the intended purpose of the GOMORs has been served and that the applicant has had no disciplinary infractions since his latest reprimand. His performance since these two GOMORs has been stellar as evidence by his subsequent evaluations, commendations, and awards, and requests that the applicant’s GOMORs be removed to the R fiche of his OMPF.

Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, 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 OMPF 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, DASEB, Army Appeals Board, the Chief of Appeals and Corrections Branch of the Total Army Personnel



Command, or the OMPF 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.

Table 2 of the regulation pertains to the composition of the OMPF. It states, in pertinent part, that administrative MORs will be filed on the P fiche.

Army Regulation 600-37 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 (LOR) or censure in official personnel files. Paragraph 3-4(b) provides for filing in the
OMPF. It states that a letter, regardless of the issuing authority my be filed in the OMPF maintained by the U.S. Total Army Personnel Command (PERSCOM), the Army Reserve Personnel Command (ARPERSCOM), 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.

Paragraph 7-3 of the same regulation pertains to processing appeals and petitions. It states that appeals and petitions (in military letter format) should be prepared and sent directly to the President, DASEB. The DASEB will review and evaluate the evidence available and make final determinations within that authority not otherwise held by the Department of Military Personnel Management (DMPM).

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 GOMORs were properly imposed and are properly filed on the P fiche of the applicant’s OMPF.

2. The Board notes that the applicant has failed to provide evidence to substantiate his request. This Board concurs with the DASEB, and agrees that the GOMORs should remain filed on the applicant R fiche of his OMPF.





3. The Board notes the applicant’s personal letter and the letters from his former leaders which attest to his character. The applicant’s performance has apparently been without further incident since his GOMORs; however, the DUI occurrences leading to the GOMORs is considered to be extremely serious and occurring less than 5 years ago, to be dismissed at this time.

4. 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 this requirement.

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

__ls____ __dh____ ___pm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071763
SUFFIX
RECON
DATE BOARDED	20020806
TYPE OF DISCHARGE
DATE OF DISCHARGE	Active duty
DISCHARGE AUTHORITY	AR . Active duty
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 280
2.
3.
4.
5.
6.