BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120010072 


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 removal of his Letter of Reprimand (LOR) from his Army Military Human Resource Record (AMHRR).  

2.  He states:

	a.  he received an LOR on 1 February 2012 and it stated he introduced "Spice" on a military installation.  It also stated he threatened to hurt a female by hurting those she loved.  The LOR was worded incorrectly and it stated he committed these offenses.  

	b.  the LOR is false and there was a lot of information omitted from the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) report.

	c.  he was setup by known drug users and dealers.

	d.  the LOR is an injustice.  The CID failed to seek the truth and was quick to make judgment.  He has supporting documents proving his innocence.  The CID report stated he received a money transfer and some drugs from Elizabethtown, NJ sometime in 2011.  He has never been on leave and he was in Yongsan, Korea from 11 January 2010 until now.  He will also provide letters from his chain of command.



3.  He provides:

* LOR
* Memorandum, dated 19 August 2011, Subject:  Removal of the International Hold on [applicant]
* Memorandum, dated 19 August 2011, Subject:  Cases Waived by the Republic of Korea (ROK) and Official Duty Cases 
* Six EA Forms 641-E (Request for Change of Foreign Service Tour)
* Listing of students at the Operator Course 05-11
* Sworn statements
* Three CID Forms 94 (Agent's Investigation Report)
* Affidavit 
* Article from internet website 
* Electronic message (email)

CONSIDERATION OF EVIDENCE:

1.  The applicant initially served in the U.S. Army Reserve from 21 November 2008 to 9 December 2009.  He enlisted in the Regular Army on 10 December 2009 and is currently serving on active duty in the rank of specialist (SPC)/E-4.  He arrived in Korea on 13 January 2010.  

2.  He provided a 5-page CID sworn statement, dated 25 June 2011, from SPC Q.T. R------- who attested, in part, the applicant told him he was going to send him a package containing a quarter pound of "Spice" and the applicant wanted him to bring it back to Yongsan, Korea and give it to another individual. 

3.  He also provided page 2 of a 4-page CID sworn statement, dated 28 July 2011, from a female, G--------- F--------, who attested, in part, the applicant told her via Skype that he was selling drugs.  On 29 July 2011, she sent an email to Staff Sergeant M-------- inquiring whether it was possible to retract her statement.  On the same date, Staff Sergeant M------- responded to her email and informed her that it was not possible; once the statement was signed and becomes part of a case file.

4.  A 19 August 2011 memorandum from the Chief, International Law Division, Korea, informed the Chief, Military Justice Division, Office of the Staff Judge Advocate, the international hold previously imposed on the applicant was removed.

5.  In a second 19 August 2011 memorandum from the Chief, International Law Division, the Chief, Military Justice Division, Office of the Staff Judge Advocate was informed of a list of cases in which the Republic of Korea government waived its primary jurisdiction and official duty cases.  This list included the applicant's name with his offense listed as drug abuse.  

6.  On 20 October 2011, G--------- F-------- submitted an affidavit attesting her sworn statement was invalid because she believed the applicant was innocent of the things he was being accused of doing.  

7.  On 1 February 2012, he received an LOR for introducing on to military installations, with intent to distribute, "Spice," a schedule I controlled substance.  He also threatened to hurt a female by hurting those she loved after she reported his misconduct.

8.  The LOR was imposed as an administrative measure and not as punishment under the provisions of Army Regulation 600-37 (Unfavorable Information), paragraph 3-4 and not as punishment under Article 15, Uniform Code of Military Justice.  The applicant acknowledged receipt of the GOMOR in accordance with Army Regulation 600-37, paragraph 3-6.  He elected to submit statements in rebuttal.

9.  In his appeal, he attested:

	a.  he had been in Korea for 25 months.  During this time, he helped the SP51 Supply Support Activity win the Army Supply Excellence Award, won the Soldier of the Month Board 12 times, and won the 498th Combat Sustainment Support Battalion Quarter Board.  

	b.  he strives for excellence in everything he does which is why he qualified as expert with his assigned weapon, completed the maximum number of correspondence training hours, and served his country adopting Army values.

	c.  he had been physically and emotionally drained during this investigation.  At no time did he possess, sell, use, or introduce any illegal narcotics into the U.S. Army.  He attested these allegations were fallacious despite the accusations against him.  

	d.  he requested the LOR be filed locally rather than in his AMHRR. 

10.  On 5 March 2012, a legal advisor informed the commanding general that the LOR complied with Army Regulation 600-37 and could be filed in the applicant's AMHRR.  The legal advisor also informed the commanding general the LOR could be filed locally or issued directly to the applicant.  The legal advisor recommended the LOR be filed in the applicant's AMHRR.  The company commander recommended the LOR be filed locally and the intermediate and senior intermediate commanders recommended the LOR be filed in the applicant's AMHRR.  The commanding general directed the LOR be filed in the applicant's AMHRR.  

11.  On various dates between 11 January 2012 and 28 March 2012, he submitted five EA Forms 641-E requesting a change of his foreign service tour.  These forms indicated he was currently pending battalion investigation, was on international hold, and was pending CID investigation.  Only one form was signed by the company commander.  

12.  A review of the applicant's military records in the Interactive Personnel Electronic Records Management System revealed the LOR and allied documents were filed in the performance portion of the applicant's AMHRR.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the AMHRR, 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 AMHRR 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 U.S. Army Human Resources Command, the AMHRR custodian when documents have been improperly filed, Human Resources Command, 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.

14.  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.  

   a.  Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files.  
   
b.  Paragraph 3-4(b) states that a letter, regardless of the issuing authority, 
may be filed in the Official Military Personnel File (currently known as AMHRR) maintained by the U.S. Army Human Resources Command, the Army Reserve Personnel Command, 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 AMHRR will be filed on the performance portion.  The direction for filing in the AMHRR will be contained in an endorsement or addendum to the letter.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Appeals submitted under this provision will normally be returned without action unless at least one year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received an LOR on 1 February 2012 for introducing on to military installations, with intent to distribute, "Spice," a schedule I controlled substance and threatening to hurt a female by hurting those she loved after she reported his misconduct.  His service record is void of evidence and he has not provided sufficient evidence which indicates he was found not guilty of these offenses.  

2.  The evidence of record does not support his contention that the LOR was worded incorrectly, the offenses were false, or was unjust.  

3.  His service record is void of evidence to support his contention that he was setup by known drug users and dealers.

4.  The applicant contends he was in Korea and the CID report mentioned he received a money transfer and some drugs from Elizabethtown, NJ.  He may not have been in New Jersey; however, the evidence of record revealed he received money and drugs through the mail.

5.  The evidence of record shows the LOR and allied documents are properly filed on the performance portion of his AMHRR in accordance with applicable regulations.

6.  The LOR was properly imposed against the applicant; therefore, it is believed that due to the short period of time that has passed it is not evident that the LOR has met its intended purpose.  The evidence presented was insufficient to warrant the request for removal of the LOR.

7.  His service record is void of evidence and he has not provided compelling evidence to indicate his LOR was improperly filed.  Therefore, there is no basis for granting his 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 for correction of the records of the individual concerned.




      _______ _   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)                                         AR20120010072





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ABCMR Record of Proceedings (cont)                                         AR20120010072



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