RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 October 2005
      DOCKET NUMBER:  AR20050000817


      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             |
|     |Mr. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that a 25 October 2002 General Officer
Memorandum of Reprimand (GOMOR) be removed from his Official Military
Personnel File (OMPF).

2.  The applicant states that a formal Army Regulation (AR) 15-6
investigation found that he was authorized to wear the Combat Infantryman
Badge CIB), which is listed as an authorized award on his DD Form 214s
(Report of Transfer or Discharge from Active Duty).

3.  The applicant provides copies of the following documents:

      a.  the subject 25 October 2002 GOMOR;

      b.  the applicant's 15 January 2003 rebuttal to the GOMOR;

      c.  the report of a AR 15-6 investigation that was commenced on 29
July 2002 and completed 30 August 2002;

      d.  the 2 February 2003 filing determination;


      e.  a 10 November 2004 memorandum to the Commander, Army Reserve
Personnel Center requesting Department of the Army Suitability Evaluation
Review Board (DASEB) consideration of the instant request;


      f.  DASEB Decision Summary;


      g.  Officer Evaluation Reports for the periods ending December 2000
and December 2003;


      h.  mobilization orders to report on 7 September 2004 in support of
Operation Iraqi Freedom;


      i.  release from active duty orders, effective on 3 December 2004 due
to retirement;


      j.  the approved award recommendation and certificate for the
Meritorious Service Medal for the 10 year period, July 1994 through May
2004;



k.  a 2 September 2004 memorandum from a major general supporting the
applicant's recall from retirement;


      l.  a 19 October 2004 letter from a Member of Congress requesting an
investigation into the circumstances surrounding the applicant's non-
deployment in support of Operation Iraqi Freedom;


      m.  a response to the Congressional inquiry;


      n.  the Congressman's 13 December 2004 follow-on letter expressing
dissatisfaction with the previous response;


      o.  a 10 January 2005 facsimile cover sheet from designated counsel.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel offered no evidence or argument beyond that submitted with the
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed an Army Reserve (USAR) infantry officer in
1977. His mandatory removal date was 24 August 2005.  He was a TPU (Troop
Program Unit) lieutenant colonel on 25 October 2002 when he was reprimanded
by the Deputy Commander, 94th Regional Support Command (RSC), a brigadier
general, for failing to obey the 1999 written order of Colonel S____ and
the personal order by the general, himself, to remove the CIB from his
uniforms.  The memorandum noted that an informal investigation had
determined that the applicant was not entitled to wear the CIB.

2.  The applicant acknowledged receipt of the 25 October 2002 GOMOR on
22 November 2002 and requested that it be withdrawn or at least not filed
in his OMPF.  His response also:

      a. argued that the order to remove the CIB was unreasonable, since it
was listed on his DD Form 214 and a formal AR 15-6 investigation had
concluded he was entitled to wear it until it was officially removed from
his DD Form 214;



b.  contended that "my failure to remove the CIB from my uniform was not
the result of a complete disregard of your order but from confusion and
inconsistencies as to the true state of the award…[and the
MOR]…excessive…for my lack of judgment…";


      c.  cited the AR 15-6 investigator's conclusion that the applicant did
not have the responsibility to prove the DD Form 214 entries had been
verified or were verifiable;


      d.  contended that the 94th RSC had lost his records;


      e.  pointed out that in 1999 he had been advised by the Deputy Chief
of Staff for Personnel, 94th RSC, that action to amend the DD Forms 214
would be taken if the permanent orders for the CIB could not be located;
and


      f. reported that he had ceased wearing the CIB in 1999 after receiving
Colonel S____'s letter, but had started wearing it again in late 2002 when
he was "instructed" by the battalion personnel officer [a captain] that for
promotion board purposes, he needed to wear all awards shown on his DD Form
214.


3.  The applicant noted that actions to determine the status of the CIB and
the recent AR 15-6 investigation had been disregarded and:

      a.  concluded that the issue had been brought up as a form of
harassment;


      b.  stated that other officers were in similar situations and had not
been badgered about their CIBs;


      c.  observed, "My award has been questioned three times by this
Command in the last four years without any meaningful effort to fully
resolve the issue."


      d.  contended that the CIB issue was racially motivated;


      e.  noted that he had made a written complaint to the Commanding
General, 94th RSC on 11 November 2002;



f.  alleged  that he had been publicly humiliated by the 94th RSC's
Inspector General;


      g.  claimed that the AR 15-6 investigation officer (IO) had reported
to the Equal Opportunity Advisor that many people had pressured him and
that, "if someone wanted this done correctly they would have had an S-1
conduct the investigation and not me;"


      h.  reported that the IO had made further complaints to the Equal
Opportunity Advisor about the way the applicant had been treated by the
94th RSC; and


      i.  indicated that there were 6 enclosures, presumably including the
AR 15-6 IO's report.

4.  The Army Regulation 15-6 IO was appointed by the Commander 167th
Support Group [a subordinate unit of the 94th RSC] to "determine whether or
not the Combat Infantryman Badge (CIB) was awarded to [the applicant] by
proper authority and if so whether or not it was in compliance with Army
Regulation 600-8-22, Military Awards.  The IO:

      a.  reviewed the applicant's assignment during the Persian Gulf War,
the nature of the command and the regulatory requirements for the CIB and
concluded that, since the CIB was shown on his DD Form 214 it was more
likely than not that the applicant had been awarded the CIB.


      b.  noted that a Judge Advocate General (JAG) officer from the XVIII
Airborne Corps, who had been assigned to help him and the Trial Counsel at
the 167th Support Group agreed that there was a "presumption of validity"
attached to entries on a DD Form 214 and that "possession of a permanent
order was not the only acceptable proof of an award."


      c.  stated that the Commander, 22nd Support Command had CIB award
authority during the Persian Gulf War and observed that, although it was
not an infantry unit, Soldiers could have qualified through assignment to a
subordinate infantry unit;



d.  noted that the applicant's deployment during the Persian Gulf War did
not correspond to the authorized period for award of the CIB, but
considered the applicant's beliefs regarding the inherent dangers of his
missions and his assignment to the XVIII Airborne Corps and concluded that
the applicant had been eligible for the CIB.

5.  The IO recommended "Remove Flag and Rectify Issues Created by Flag.  He
noted that the applicant was, "guilty of no misconduct or wrongdoing with
regard to awarding the CIB."  The IO also recommended that the Commander,
Army Personnel Command (PERSCOM) be requested to determine the truth and
issue proper orders and that the applicant be authorized, in writing, to
wear the CIB until that was accomplished.  There is no indication that the
IO's findings and recommendations were referred to, reviewed or approved by
any authority.

6.  The applicant's OERs show that while deployed in the Persian Gulf War
he was an Infantry major attached to the 22nd Support Command from 1 July
to 13 November 1991.  His DD Form 214s for that period of active duty lists
the Combat Infantry Badge [sic] among his authorized awards.  The CIB is
also included on DD Forms 214 for subsequent periods of active duty.   The
applicant was the Commander, 395th Quartermaster Battalion when the
reprimand was issued.  There are insufficient records to identify the
command relationships involved with respect to Colonel S____, who issued
the written order in 1999, or the commander of the 167th Support Group who
appointed the AR 15-6 IO.

7.  On 9 May 2003 a DD Form 215 (Correction to DD Form 214) was issued to
delete the CIB from his 25 August 1997 DD Form 214.  There is no evidence
that any such action has been taken on his other 214s.

8.  Army Regulation 600-8-22, Military Awards, prescribes Army policy and
procedures concerning awards.  Paragraph 8-6 provides for award of the CIB.
 That paragraph states that there are basically three requirements for
award of the CIB.  The Soldier must be an infantryman satisfactorily
performing infantry duties, he must be assigned to an infantry unit during
such time as the unit is engaged in active ground combat, and he must
actively participate in such ground combat.  Specific requirements state,
in effect, that an Army enlisted Soldier must have an infantry or special
forces specialty, satisfactorily performed duty while assigned or attached
as a member of an infantry, ranger or special forces unit of brigade,
regimental, or smaller size during any period such unit was
engaged in active ground combat.  Eligibility for special forces personnel
(less the special forces medical sergeant) accrues from 20 December 1989.
Retroactive awards for special forces personnel are not authorized.  A
recipient must be personally present and under hostile fire while serving
in an assigned infantry or special forces primary duty, in a unit actively
engaged in ground combat with the enemy. Paragraph 8-6k specifies that for
the Persian Gulf War (Operation Desert Storm) individuals must have met the
criteria in paragraphs 8-6b and c to be awarded the CIB during the period
17 January 1991 to 11 April 1991.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), as then in effect, Table 5-2), item 9 (Awards, Decorations and
Campaigns) states, in pertinent part that, "for U.S. military decorations,
the only acceptable source documentation is the order, letter, or
memorandum which awards the decorations.  Award certificates, citations, or
separation certificates alone will not be the basis for entry of a
decoration.  DD Form 214 (Certificate of Release or Discharge from Active
Duty) alone should not be the sole basis for recording the award.  This
document may be used to initially enter a decoration; however, if the
validity of the award listed on the DD Form 214 is questioned or
challenged, the only acceptable proof of award of the decorations will be
the order, letter, or memorandum which awarded the decoration. No orders or
written award instruments are issued in the case of service medals or
ribbons."

10.  Army Regulation 15-6 (Procedure for Investigating Officers and Boards
of Officers) establishes procedures for investigations and boards of
officers not specifically authorized by any other directive.   An
administrative fact-finding procedure under this regulation may be
designated an investigation or a board of officers.  The proceedings may be
informal or formal.  Proceedings that involve a single investigating
officer using informal procedures are designated investigations.  The
primary function of any investigation or board of officers is to ascertain
facts and to report them to the appointing authority.  Chapter 2 specifies
who may initiate a formal (commanders in the grade of colonel or above
after consultation with a servicing JAG officer or an informal
investigation (commanders in the grade of major or above).  Chapter 4
provides that single IOs may conduct an informal investigation as they see
fit.  Chapter 5 provides that a formal investigation requires formal
procedures.   Unless specified by some other regulation or law the
appointing authority is neither bound nor limited by the findings or
recommendations of an investigation or board.  Therefore, the
appointing authority may take action less favorable than that recommended
with regard to a respondent or other individual, unless the specific
directive under which the investigation or board is appointed provides
otherwise.  The appointing authority may consider any relevant information
in making a decision to take adverse action against an individual, even
information that was not considered at the investigation or board.

11.  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 Records Jacket (MPRJ) 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 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 AND CONCLUSIONS:

1.  The applicant's rationale for resuming the wearing of the CIB is
insufficient.  The fact that an order may be viewed as unreasonable is not
a defense against a charge of disobedience.  The applicable standard is
whether or not the order was legal.  Furthermore, the applicant's
compliance with "instruction" from a subordinate captain at the cost of
disregarding the written directive of a colonel is indefensible.  Finally,
the applicant's stated belief that the general's order was harassment
belies his contention that his lack of judgment was due to confusion.

2.  Considering that the AR 15-6 IO's report was apparently not approved by
the appointing officer [whose authority to order the investigation cannot
be verified], it apparently remains not a legal document but only an
opinion and not a well informed one at that.  The guidance for award of the
CIB clearly did not include the applicant's situation.  He was not assigned
to an infantry unit of brigade or smaller size, that he was not in Iraq
during the authorized period and there is no evidence that he was in active
ground combat.  Orders were and are required, and the DD Form 214 is not
the definitive authority.  The qualifications for the CIB are not really at
issue in this case; however, the applicant was not eligible for award of
the CIB.

3.  If the applicant had properly held the CIB it would certainly have
mitigated his behavior, yet there are no available orders to show that he
was and the award has since been removed from his DD Form 214.  It is noted
that the applicant apparently has not claimed that he was awarded the CIB;
he only asserted that it was on his DD Form 214 and no one had taken action
to prove that it should not be.

4.   The applicant may not have had an obligation to locate the orders to
validate his DD Form 214, but good judgment, self-preservation and
reasonable pride would have prompted him to do so.  If he truly believed
that he was entitled to the CIB, it is reasonable to assume that he would
not have endured perceived harassment for four years.  On the other hand,
he clearly had an obligation to comply with a lawful order, yet he asserts
that the order was unreasonable.

5.  The issuance of the MOR was accomplished in accordance with regulation
and was appropriate to the situation.  The imposing general officer
considered the applicant's rebuttal and directed that the reprimand be
filed in his OMPF.  The DASEB denied his request to remove it and the
evidence presented with this application does not convincingly establish
that the requested relief is warranted.

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.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LMD__  __JEA___  __JAM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _     James E. Anderholm________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000817                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051025                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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