MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 28 October 2003
         DOCKET NUMBER: AR2003083656

         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Linda D. Simmons		Member
Ms. Marla J. Troup		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: That a 10 September 1999 memorandum of reprimand (MOR), a February 2000 Noncommissioned Officer Evaluation Report (NCOER) and all associated documentation be expunged from his Official Military Personnel File (OMPF). He also requests that he be promoted to pay grade E-8.

APPLICANT STATES: That he was the victim in the case. His estranged wife made a false report to the police. He states that all charges against him were dismissed. The battalion commander refused to wait until after the court case to issue the MOR. He was in a hurry to impose some kind of punishment because the court-martial charges he had previously preferred had been dismissed. The battalion commander also submitted derogatory information in the NCOER. These documents resulted in his non-selection for promotion to master sergeant and a Department of the Army (DA) bar to reenlistment under the Qualitative Management Program (QMP). He was able to overcome the QMP bar and the MOR has been moved to the restricted portion (R fiche) from his OMPF. However, the existence of these documents in his record has and will hurt his career.

He provides five printouts that appear to be abstracted court records which he contends confirms his version of events. They seem to indicate that all the charges were dropped because the estranged wife's lawyer reported that she had made a false report to the police.

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

He was a private (E-2) on 8 February 1985 when he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ). He was punished for assaulting another private with his hands, dragging him around, communicating a threat and illegally confining him in the latrine. The record of this NJP is filed on the applicant's R fiche.

The applicant's record shows that in September 1998 he was under investigation with a view towards court-martial charges. However, no charges or other details are available. This is also filed on his R fiche.

In the current case, he was a sergeant first class with approximately 14½ years of continuous active duty service when he was issued an administrative letter of reprimand by his battalion commander for assaulting a civilian police officer and resisting arrest. The 10 September 1999 MOR cited the police report and was referred to the applicant for rebuttal. He had 7 days to respond or to ask for an extension.

On 20 September 1999, the applicant requested that the MOR be held in abeyance pending further development of the case. He maintained that the arrest was illegal and that he was within his rights to resist an illegal arrest. He claimed that he had been denied an opportunity to present exculpatory information to the command and that he had not been kept informed of actions
against him. He specifically asked for a 20 day extension because of the court date. If that was not granted, he wanted a 10 day extension for his civilian attorney to coordinate with the National Association for the Advancement of Colored People (NAACP). Finally he asked that the MOR be destroyed or that the filing determination be postponed until after the court date.

When the request for extension was denied the applicant offered essentially the arguments in rebuttal.

The immediate and intermediate commanders recommended that the MOR be filed in the applicant's OMPF. On 15 November 1999 the commanding general directed that it be so filed.

On his NCOER for the period ending February 2000 the applicant's rater marked him as excellent (exceeds standards) on competence and physical fitness and successful (meets standards on leadership and training. He indicated the applicant's overall potential for promotion was "Among the Best." The senior rater marked the applicant's overall performance in the second block and his overall potential in the top block. The reviewer, the same officer who had issued the MOR, non-concurred. The reviewer noted that the applicant had neglected to comply with an order to make his child and spousal support payments in a timely manner. This failure resulted in time consuming personal problems and required the applicant to spend so much time away from the detachment that he had to be transferred to the company staff in order to facilitate his own schedule. The reviewer opined that second block ratings in both overall performance and overall potential were appropriate.

The DA bar to reenlistment was imposed under the QMP based on the MOR incident. With the support of his chain of command, the applicant successfully overcame the QMP bar to reenlistment.

A 15 August 2002 memorandum from the Commanding Officer, Enlisted Records and Evaluation Center noted that the Department of the Army Suitability Evaluation Board (DASEB) had transferred the MOR to the applicant's R fiche prior to the calendar year 2002 (CY02) master sergeant selection board. However, the board had seen the MOR and had cited it as part of the basis for the QMP bar.

Since the MOR incident the applicant's NCOERs show that his raters have rated him as either Excellent/Exceeds or Successful/Meets standards. His raters have always ranked his overall performance and potential as among the best and his senior raters have generally marked him in the top blocks.

His awards include the Army Commendation Medal (4^th award), the Army Achievement Medal (6^th award), the Good Conduct Medal (5^th Award), the Senior Parachutist Badge and parachutist badges from various foreign countries.

Army Regulation 600-37 (unfavorable information) provides in pertinent part, that administrative letters of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the soldier. The letter must be referred to the recipient and the referral must include and list applicable portions of investigations, reports or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made. Letters of reprimand may be filed in a soldier's OMPF only upon the order of a general officer level authority and are to be filed on the performance fiche. The direction for filing is to be contained in an endorsement or addendum to the letter. If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached. Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7. Letters of reprimand intended for filing in the Military Personnel Record Jacket may be retained for no more than 3 years and must state the length of time they are to be retained. Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct. Appeals to the DASEB to relocate a reprimand, admonition or censure (normally for soldiers in pay grade E-6 and above) are to be based on proof that the intended purpose has been served and that transfer to a restricted fiche would be in the best interest of the Army. The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed. If the appeal is denied the DASEB letter of denial will be filed on the performance fiche, the appeal itself and any associated documents will be filed on the restricted fiche. Otherwise this Board may act in accordance with Army Regulation 15-185 and the soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority.

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 issuance of the MOR was accomplished in accordance with regulation and was appropriate to the situation.

2. The documents submitted by the applicant only show that the charges were dropped. They do not demonstrate that the offenses did not occur. Even if the estranged wife did make a false complaint that does not justify the applicant's behavior of assaulting a police officer and resisting arrest.

3. The Army has an obligation to maintain a complete and accurate record of an individual's service. The placement of a record of certain discreditable information on the restricted fiche enables the Army to maintain that historical record without unduly jeopardizing the individual's career.

4. Careful consideration has been given to the applicant's service subsequent to the MOR. However, there is insufficient justification for the requested relief. This is especially true since this is the second violent assault in the applicant's military record.

5. The applicant presented no supporting evidence to substantiate his request that the NCOER should be expunged. The Board notes that the specific information cited by the reviewer is not the MOR incident. There is insufficient evidence to conclude that any part of the NCOER was unjust.

6. Since no relief is warranted on his requests concerning the MOR and the NCOER, none is warranted on his request for promotion to pay grade E-8.

7. 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.

8. 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

__RJW__ __LDS___ __MJT__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084424
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031028
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY	. . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	126.00
2.
3.
4.
5.
6.