IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20140010480 


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 correction of his military records by removing a Department of the Army removal letter from his Official Military Personnel File (OMPF) and from a promotion board file.

2.  The applicant states the subject removal letter was placed in his OMPF without due process.  He was not notified that this document was being forwarded to his OMPF.  He was not given an opportunity to rebut any matter alleged in the letter.

3.  The applicant provides copies of:

* A letter from the Office of The Inspector General (TIG), Department of the Army, dated 16 April 2014
* Email communications dated between 9 and 12 June 2014
* A petition from the applicant’s defense counsel, dated 19 June 2014

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the subject letter be removed from his OMPF and from his promotion board file.

2.  Counsel states the applicant was made aware of the subject document’s existence through an email notification on or about 9 May 2014 informing him that the letter was being filed in his OMPF.  Counsel argues that Army Regulation 600-37 (Unfavorable Information), paragraphs 3-4(b)1 and 3-6, required, with certain exceptions, that such a letter be referred to the applicant for comment.  Because he was not so notified, he was denied due process and was not able to respond to any filing recommendation.  This regulation further requires that statements and other evidence furnished by the recipient will be reviewed and considered by the officer authorized to direct filing in the OMPF.  This review is to be done prior to a final filing determination.  The applicant was not given an opportunity to fully rebut any matter alleged in the letter and to potentially prevent this letter from being filed in this manner.  There is nothing in the letter stating it was to be forwarded for permanent filing, nor does any acknowledgment by the applicant exist, as required by paragraph 3-6.  The applicant was never given a relief for cause officer evaluation report (OER).  A relief for cause must be accompanied by a relief for cause OER or an academic evaluation report (AER).  Because no such documents exist, the subject letter may not be filed permanently in his OMPF.  The subject letter is improperly filed in the service folder of the applicant’s OMPF.  The only proper documents for the service folder are enlistment contracts, reenlistment contracts, extensions of enlistment, waivers of enlistment or reenlistment, statements of declination, promotion orders, and Certificates of Release or Discharge from Active Duty.  As such, the letter does not belong to any of these groups.

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  At the time of the applicant’s application, he was serving in the Regular Army in the rank of lieutenant colonel.

2.  In a letter dated 16 April 2014, TIG wrote to the applicant to inform him that as a result of the findings of a commander’s inquiry into the applicant’s actions at the Europe Region Medical Command, he was permanently terminating his certification to serve in the capacity of Command Inspector General (CIG) and revoking his additional skill identifier “5N.”  TIG stated he was aware the applicant’s commander had removed him from the CIG position due to a lack of appropriate judgment and maturity to serve as the CIG.  TIG found his actions were not consistent with the standards expected from individuals serving as inspectors general.  A copy of the letter was to be forwarded to the Agency Operations and Support Division.

3.  A review of the applicant's OMPF showed a copy of the subject letter is filed in the applicant's service folder.

4.  Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) provides that a Department of the Army letter removing a Soldier from a nominated program will be filed in the service folder unless directed otherwise by the general-court martial convening authority in accordance with Army Regulation 600-37.  If filed in the service folder only the memo will be filed; no supporting documents will be filed.

5.  Army Regulation 600-37, paragraph 3-4 provides for the filing of non-punitive administrative letters of reprimand, admonition, or censure in the OMPF.  Such letters will only be filed in the performance folder of the OPMF after referral to the person concerned and then only at the direction of a general officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by removing a Department of the Army removal letter from his OMPF and from a promotion board file, because he was not afforded due process

2.  The available evidence clearly shows the TIG became aware of a commander’s inquiry that found the applicant’s judgment and maturity to serve as the CIG inconsistent with the standards expected from individuals serving as inspectors general.  The TIG made a personnel decision to terminate his CIG certifications and to revoke his additional skill identifier.  These actions are simply personnel management functions and do not fall into the category of being non-punitive administrative letters of reprimand, admonition, or censure.  Therefore, the provisions of Army Regulation 600-37 do not apply to this document.

3.  Regulatory guidance clearly requires that the subject letter be filed in the service folder of the OMPF unless directed otherwise by a general officer.  There is no such directive available for review.

4.  Counsel argued that a copy of the subject document was placed in the applicant’s promotion board file.  This is unlikely because normal promotion board procedures provide for only the performance folder documents to be made available to promotion boards.  In any case, he has provided no evidence that it was provided to a promotion board.

5.  In this case there is no evidence or error or injustice.  Therefore, there is an insufficient evidentiary basis for granting the applicant's or counsel's requested relief.



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)                                         AR20140010480





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ABCMR Record of Proceedings (cont)                                         AR20140010480



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