IN THE CASE OF:
BOARD DATE: 28 April 2009
DOCKET NUMBER: AR20090003283
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests reconsideration of his earlier request for correction of his military records to remove a letter of reprimand (LOR) from his Official Military Personnel File (OMPF).
2. The applicant states, in effect, that the accuser withdrew her allegations, admitting that she had fabricated them. The applicant further contends that, even though the Inspector General dismissed the investigation, his command continued to follow through and issued him an LOR based on circumstantial evidence.
3. The applicant provides, in support of his application, copies of the accuser's withdrawal statement, pages 3 and 4 of the investigation, a list of exhibits, a memorandum for the applicant from his commander, and a memorandum written by the applicant's commander requesting that he be granted a waiver for the purpose of being extended on Active Guard/Reserve (AGR) duty.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080012396, on 12 November 2008.
2. The two memoranda written by the applicant's commander are new evidence for the Board to consider. The remaining items of evidence and the applicant's stated argument were previously considered.
3. On 9 July 2008, the applicant's commander, a lieutenant colonel, requested that the applicant be granted a waiver to permit his AGR tour of duty to be extended for an indefinite period. The memorandum states, in effect, that the applicant has been assigned as the Public Affairs Officer and a senior full-time support supervisor for the 318th Press Camp Headquarters since October 2005. The author states that he has known the applicant since 1 November 2005 and that he has provided invaluable assistance and support from day one. The memorandum makes no mention of the subject LOR.
4. On 14 October 2008, the applicant's commander wrote a memorandum, wherein he ranked the applicant as the best among his peers, technically, tactfully and ethically. He stated, in effect, that the investigation found the allegations to be without merit. He stated that the applicant's AGR tour of duty had been indefinitely extended and recommended that the documentation pertaining to the earlier investigation be removed from his OMPF.
5. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System. It establishes principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records. It states, in pertinent part, that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority.
6. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to (1) authorize placement of unfavorable information about Army members in individual official personnel files; (2) ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and (3) ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. It establishes the DASEB to hear appeals for removal of documents.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his LOR should be removed from his OMPF because the underlying investigation found the allegations to be unfounded.
2. The two additional memorandums do not show that the LOR was untrue or unjust.
3. Even though the investigation determined the allegations to be unfounded, the commanding general had the discretion to issue the LOR based upon his own consideration of the evidence and it would be imprudent to substitute the judgment of the ABCMR for that of the commanding general when all the specific facts and circumstances are not available for review.
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 the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ____X __ ___X____ 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 to amend the decision of the ABCMR set forth in Docket Number AR20080012396, dated 12 November 2008.
_______ _ _X______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20090003283
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ABCMR Record of Proceedings (cont) AR20090003283
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