MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 July 2003
         DOCKET NUMBER: AR2002083224

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. Melvin H. Meyer		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 his 11 June 2001 Memorandum of Reprimand (MOR) be removed from his Performance fiche, Disciplinary Data Section, of his Official Military Personnel File (OMPF). In the alternative, he requests that this MOR be transferred to his Restricted Data Section of his OMPF.

APPLICANT STATES: In effect, that the MOR is untrue and unjust. He denies the allegation that he attempted to shirk his duty by making false representations to another officer in order to solicit that officer into taking his deployment assignment. He contends that this allegation is based on comments that he supposedly made to his presumed replacement. He states that he contacted the officer after receiving prior permission from his company commander and that his company commander "guaranteed" him that this officer would be his replacement on the deployment. He further contends that his Operations Officer took issue with the fact that he only coordinated with his commander regarding the phone conversations with his potential replacement, despite his commander's admission that his only directive to the applicant was to make sure that he had the opportunity to speak with the officer.

The applicant denies the allegation that he failed to adequately prepare himself for deployment and contends that nothing could be further from the truth. He contends that he began making preparations on 12 October 2000 when he was told that his "guaranteed" replacement would not be deploying in his place because the switch was not directed through the Operations Officer. He explains that there was a delay in obtaining his passport and that he fractured his foot and was found unfit for deployment in October 2000. He goes on to state that he was again tasked to deploy in March 2001; however, he subsequently re-injured his foot in February 2001 and was declared non-deployable.

The applicant denies the allegation that he caused undue hardship on the officer he was to replace on the deployment. He states that the officer was "thrilled" about the chance to extend his tour and that he would have stayed even longer if allowed. The officer whom the applicant was replace provided a statement attesting that there was no personal hardship on him and that he wanted to remain in Honduras.

The applicant states that the facts behind this administrative reprimand do not support its imposition. In support of his application, he submits a letter of explanation, dated 15 October 2002, and ten enclosures addressed in his letter of explanation.

EVIDENCE OF RECORD: The applicant's military records show that he is currently a captain serving on active duty.

The applicant's OMPF contains a letter, dated 14 March 2001, from the Office of the Commanding Officer. This letter states, in pertinent part, the applicant "was notified of his pending deployment in October 2000 and again in February 2001, well in advance and has had the necessary information available to prepare himself and his family for the deployment. There have been delays due to his injures, lackadaisical attitude and failure to follow instructions to prepare himself for deployment."

On 11 June 2001, an administrative MOR was tendered to the applicant by the Deputy Commanding General of Headquarters United States Army Infantry Center in Fort Benning, Georgia, for wrongfully and intentionally evading a deployment to Honduras. The MOR states that the applicant knowingly attempted to shirk his duty by making false representations to another officer in order to solicit that officer into taking his deployment assignment, that he failed on several occasions to adequately prepare himself for that deployment, and that his actions caused undue hardship on the officer he was designated to replace on this deployment. This MOR was imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice. The Deputy Commanding General stated that he might recommend that this reprimand be filed permanently in his OMPF. The MOR was referred to the applicant for comment. The applicant acknowledged receipt of the MOR and was informed to submit any matters in rebuttal, extenuation, or mitigation through his chain of command. He elected to submit a statement in his own behalf.

On 6 July 2001, the applicant responded by stating that at no time did he make false representations to anyone and he provided a statement from a coworker in support of his claim. He also provided a statement from the officer he was supposed to replace on the deployment stating that the applicant did not cause any undue hardship. He also stated that misinformation with his chain of command and his medical conditions resulted in a delay in going to Honduras.

On 5 September 2001, the Commanding General directed that the applicant's MOR be filed on his OMPF.

On 8 March 2002, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of his 11 June 2001 MOR from his OMPF or that the MOR be transferred to his Restricted Data Section of his OMPF.

On 21 May 2002, after a thorough evaluation of the applicant's entire record, the DASEB denied the applicant's requests. The DASEB further stated that a request for reconsideration was authorized upon presentation of new substantive evidence.



On 5 September 2002, the applicant appealed the DASEB decision. On
17 October 2002, the applicant's appeal was returned without action. The DASEB cited that the applicant's appeal did not provide new substantive evidence.

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 or 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 OMPF.

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 non-punitive administrative letter of reprimands 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 may 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. 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.

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 considered the applicant's contention that he did not make any false representations to another officer in order to solicit that officer into taking his deployment assignment. However, the applicant has provided no statement from this officer to support this contention.

2. The Board does not agree with the applicant's contention that he adequately prepared himself for deployment. Evidence of record indicates that his deployment was delayed due to his "lackadaisical attitude" and that he failed to follow instructions to prepare himself for deployment.

3. The argument by the applicant that there was no undue hardship on the officer he was to replace in Honduras ignores the real issue set forth in the MOR, specifically that the needs of the Army must prevail over personal choices. The Board noted the statement by the officer whom the applicant was to replace that there was no personal hardship on him and he wanted to remain in Honduras. However, as a result of the applicant's failure to deploy on time, the officer in Honduras did not arrive at his next assignment as scheduled thereby creating a shortfall in the gaining unit. Further, the assignment and career progression patterns of the officer in Honduras, managed at Department of the Army level, were interrupted by this officer's failure to return from Honduras as originally scheduled in October 2000. Therefore, the Board concluded that the applicant's contention there was no undue personal hardship on the officer in Honduras, while correct from a personal perspective, is without merit when considering the needs of the Army.

4. The 11 June 2001 MOR was properly imposed and properly filed on the applicant's permanent fiche of his OMPF. The applicant was given an opportunity to appeal and his appeal was denied. There is no evidence of any error or injustice in the issuing of the MOR.

5. This Board concurs with the DASEB, and agrees that the MOR should remain on the applicant’s permanent fiche of his OMPF. Therefore, the Board determined that it is inappropriate to remove or transfer the MOR at this time.

6. 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.

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

TSK____ MHM____ KYF_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083224
SUFFIX
RECON
DATE BOARDED	20030701
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	126.0300
2.
3.
4.
5.
6.