MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 February 2002
         DOCKET NUMBER: AR2001056579

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Melvin H. Meyer		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: The removal of a General Officer Memorandum of Reprimand (GOMOR) dated 1 July 1998, from his Official Military Personnel File (OMPF). He further requests that a Department of the Army imposed bar to reenlistment that he was issued under the Qualitative Management Program be removed from his records.

APPLICANT STATES: That on 2 November 1998, the Commanding General of the United States Army Recruiting Command (USAREC) sent him a memorandum informing him that the GOMOR would be filed in his OMPF. He states that the Commanding General did not have the authority to direct that the GOMOR be filed in his OMPF. He states that the GOMOR should have been forwarded to his new command for a filing determination. In support of his appeal he submits an Addendum to a Report of Investigation dated 27 March 1998; a copy of a memorandum from his former battalion commander dated 30 March 1998, concurring with the investigation officer’s findings and recommendation; a copy of a request for leave dated 13 March 1998, reflecting the dates of his leave and the dates of his permissive temporary duty; a copy of the GOMOR dated 1 July 1998; a copy of his acknowledgement of receipt of the GOMOR dated 24 July 1998; a copy of an undated memorandum from the battalion executive officer recommending that the GOMOR be filed in his Official Military Personnel File (OMPF); and a copy of a memorandum from the successor of the issuing general officer dated 2 November 1998, directing that the GOMOR be filed in his OMPF.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant, a soldier on active duty in the United States Army Reserve (USAR) Active Guard Reserve (AGR) Program, was assigned to the Roanoke Recruiting Station, Roanoke, Virginia, when he submitted a Request and Authority for Leave (DA Form 31) on 13 March 1998. He requested that he be approved for 10 days of permissive temporary duty (27 May through 5 June 1998) and 30 days of leave for the purpose of a permanent change of station (6 June through 5 July).

On 27 March 1998, a follow-up to an investigation was conducted to determine whether the applicant had participated in recruiter misconduct. The investigating officer found that the applicant did commit a recruiting impropriety by falsifying a DA Form 4187 in order to effect the transfer of an individual from the Individual Ready Reserve to a Troop Program Unit without her consent. The investigating officer recommended that a brigade memorandum of reprimand be filed in the applicant’s local file.

On 30 March 1998, the applicant’s commanding officer concurred with the findings and recommendation of the investigating officer and he recommended that the case be closed as substantiated.
It appears that the applicant had accepted an assignment at the Department of the Army Noncommissioned Officers Academy at Fort McCoy, Wisconsin on 1 July 1998, when his former commanding general officer notified him that he had reviewed the report of investigation and that the preponderance of evidence substantiated that he committed a recruiting impropriety. He was furnished a GOMOR for his misconduct and he was informed that as a senior noncommissioned officer and a recruiter, he was expected to conduct himself beyond reproach. He was also told that he had involved himself in actions which cast doubt upon his character and integrity and that his actions raised serious questions concerning his ability to hold future positions of trust and responsibility in today’s quality Army. His former commanding general went on to inform him that the GOMOR was imposed as an administrative measure and not as punishment under Article 15, Uniformed Code of Military Justice and that although he intended to file it in his OMPF, he would not make a final decision until after a review of any matters submitted by him on his own behalf. The applicant’s former commanding general concluded by stating that materials that he wished to be considered should be submitted to his immediate commander for routing to the Commander, United States Army Recruiting Command ATTN: RCSJA, 1307 3d Avenue, Fort Knox, Kentucky, within 10 calendar days after the receipt of the memorandum of reprimand.

On 16 July 1998, the executive officer of the recruiting battalion recommended that the GOMOR be filed in the applicant’s OMPF.

The applicant acknowledged receipt of the GOMOR on 24 July 1998 and he indicated that he would submit a statement and/or documents in his own behalf within 10 calendar days.

On 12 August 1998, the applicant submitted a response to the GOMOR admitting that he made minor mistakes in the recruiting of the individual named in the investigation; however, he believed that his actions constituted the type of sincere but misguided effort that should not be the subject of a GOMOR filed in his OMPF. In his response to the GOMOR, he stated that his rights to due process have been violated; and that there was a widespread abuse of discretion in recruiting command. He stated that the facts and circumstances in his situation did not warrant the filing of a GOMOR in his OMPF and he respectfully requested that the GOMOR be withdrawn.

On 2 November 1998, the successor of the general officer that issued the GOMOR notified the applicant that he had reviewed the reprimand, his rebuttal, his supporting documents and the recommendations of his chain of command. The commanding general stated that the information submitted by the applicant did not alter the proposed filing determination and as the successor of the general officer that issued the reprimand, he directed that the GOMOR be filed in his OMPF. The applicant was informed of his rights to appeal the filing decision.
Although not a part of the available records, the applicant was notified that the Calendar Year 2000 USAR Sergeant Major/Master Sergeant Promotion Selection Board had determined that he should be barred from reenlistment under the QMP based on the presence of the Memorandum of Reprimand dated 1 July 1998, indicating deficiencies/weaknesses in discipline.

Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. It states, in pertinent part, that a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer or officer having general court-martial jurisdiction over the recipient. The direction for filing in the OMPF will be contained in the endorsement or addendum to the letter. However before a letter may be filed n the OMPF, it must be referred to the recipient concerned for comment, it must include reference to the intended filing of the letter, and must be signed by an officer authorized to direct such filing.

Army Regulation 140-111, chapter 10, then in effect, set forth policy and prescribed procedures for denying reenlistment under the QMP. This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet USAR standards. It is designed to (1) enhance the quality of the AGR career enlisted force, (2) selectively retain the best qualified soldiers to 29 years of active Federal service, (3) deny reenlistment for continuing AGR service to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. Bars to reenlistment imposed under the provisions of the QMP are not intended to be rehabilitative in nature. They are designed to deny reenlistment for continuing service on AGR status to soldiers who are identified through the qualitative screening program as failing to meet USAR AGR standards. Bars to reenlistment imposed under the provisions of the QMP, while denying a soldier continuing service on AGR status, will not deny the soldier an opportunity to reenlist in the USAR for continuing service in another status, provided the soldier is otherwise eligible.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Department of the Army bar to reenlistment under the QMP was imposed in compliance with applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.

2. The applicant has failed to show through the evidence submitted with his application that the GOMOR that served as a basis for his selection under the QMP was not sufficient to justify the imposition of the bar, nor has sufficient evidence been provided to justify removal of the bar to reenlistment for continued AGR service.

3. The primary basis of the applicant’s application to this Board is whether or not the GOMOR was properly imposed in accordance with the applicable regulations regarding the filing of unfavorable information. Accordingly, the Board finds that the GOMOR was imposed and filed in accordance with applicable regulations; in that it was referred to him for comment by a general officer; it included reference to the intended filing of the memorandum; and the GOMOR was signed by an officer authorized to direct such filing.

4. Although the applicant contends that he had left the recruiting command when the GOMOR was issued, the successor of the general officer that issued the GOMOR (another general officer) had the authority to direct that it be filed in his OMPF.

5. Furthermore, the applicant had the option to submit a letter to the selection board in his own behalf to explain anything he felt would not be adequately explained by reviewing his OMPF; yet it does not appear that he did anything in that regard.

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.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___gp___ __mm___ ___tap___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001056579
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/21
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 280	126.0300
2. 328	134.0000
3. 329	134.0100
4.
5.
6.