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.