RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            5 April 2005
      DOCKET NUMBER:   AR20040004442


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Jeanette McCants              |     |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:

The applicant’s request and issues are presented in the brief provided by
counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that a General Officer Memorandum of
Reprimand (GOMOR) be removed from the applicant’s Official Military
Personnel File (OMPF).

2.  Counsel states, in effect, that the facts of this case are not terribly
in dispute.  In 1996, while on a field training exercise in Germany, the
applicant became involved in a verbal altercation with a junior officer
that turned physical, which resulted in the applicant receiving the GOMOR
in question.  The applicant petitioned the Department of the Army
Suitability Evaluation Board (DASEB) for removal of the GOMOR from his
OMPF, but this request was denied.

3.  Counsel states that the applicant was passed over for promotion to
major (MAJ) in the Regular Army (RA).  Subsequently, he separated from
active duty and entered the United States Army Reserve (USAR).  He
ultimately returned to active duty as a member of the Active Guard Reserve
(AGR) program and has since been promoted to MAJ.

4.  Counsel claims that the applicant’s past record and performance since
the incident in question demonstrate he is an outstanding officer with
unlimited potential.  He further states that in spite of the incident, the
applicant’s officer evaluation report (OER) for the period was exceptional.
 Counsel claims that with the exception of this blemish on his record, his
file looks like one who would be continually promoted below the zone.
Counsel further states that in spite of this incident, the applicant’s OER
for the period in question was exceptional.  Further, while still on active
duty, the applicant was offered another command and his last OER as a CPT
was an above center of mass (ACOM) report.

5.  Counsel states that at the time of the incident, the applicant was new
to the brigade, and the other officer involved was established.  Not
surprisingly, the chain-of-command supported the other officer.  While the
altercation was mutual in every respect, there is no doubt the applicant
should could and should have avoided it.  Counsel claims the combination of
two tired officers, working in a field environment, and two clashing egos,
made a bad situation worse.  Both officers exploded, and mutual pushing
ensued.
6.  Counsel claims that after the incident, the applicant was advised that
the commanding general (CG) intended to give him a GOMOR, and the CG
properly served the GOMOR on the applicant and invited his rebuttal.  The
applicant sought the assistance of a Judge Advocate General (JAG) attorney,
who advised him on how to write the rebuttal.  The applicant felt the best
approach would be to admit his fault, and ask for forgiveness.  The JAG
attorney recommended the applicant simply write a brief rebuttal,
emphasizing his numerous accomplishments in the Army.  The applicant
followed this advice, which proved to be a mistake.

7.  Counsel further states that the applicant’s rebuttal was void of an
apology and his brigade commander noted this in his recommendation to the
CG that the GOMOR be filed in the applicant’s OMPF, a recommendation the CG
followed.  Counsel asserts that this filing ended the applicant’s active
duty career.  He was passed over for promotion to MAJ, despite an
exceptional OER from the same rating period.  The only differentiating
factor in the applicant’s record was the GOMOR.

8.  Counsel also claims that the applicant sought the assistance of
civilian counsel to effectuate removal of the GOMOR from his OMPF from the
DASEB.  After holding the case for a year, the applicant’s civilian counsel
filed a fairly short letter, again emphasizing the applicant’s
accomplishments, both before and after issuance of the GOMOR.  Not
surprisingly, the DASEB rejected this request.

9.  Counsel states that the only real question at this point is whether the
GOMOR has served its intended purpose, or whether it should continue to
hold back this exceptional officer.  Further, the applicant’s contends that
while his actions were improper, a career ending GOMOR was overkill, and
this matter should have been resolved with significantly less punishment.
To terminate an exceptional officer’s career for a ten minute lapse in
judgment that resulted in no harm to either party is the equivalent of
killing an ant with a sledgehammer.

10.  Counsel concludes by stating that perhaps the greatest indicator of
the applicant integrity and skill are the OERs he has received since the
incident.  All are exceptional and should provide the Board some insight
into the case before it.  Counsel claims the easy thing to do would be to
dismiss the case and simply decide that the chain of command knew best.
The more difficult, but correct thing to do is to realize the imposition of
the GOMOR was a draconian response to this situation, and the continued
presence of it in the applicant’s OMPF is improper.
11.  Counsel provides a self-authored brief in support of the application.


CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty in the Regular Army (RA) in a
commissioned officer status on 12 June 1991.  He was promoted to CPT on 1
July 1995 and remained on active duty until being honorable separated on 30
August 2002.

2.  On 27 August 1996, while serving on active duty in the RA in Germany,
the applicant received a GOMOR from the commanding general (CG) of the
1st Infantry Division.  The GOMOR reprimanded the applicant for his
egregious misconduct in connection with an altercation he was involved in
with another officer on 3 August 1996.  The CG indicated the incident
stemmed from what the applicant perceived as disrespectful behavior by the
other officer.  It further indicated that the applicant’s confrontational
manner allowed the altercation to degenerate into pushing and other verbal
and physical assaulting behavior on the applicant’s part.

3.  On 9 September 1996, the applicant acknowledged receipt of the GOMOR
and he provided his response.  In the response, the applicant requested
local filing of the GOMOR and presented factors to justify this request.
He stated that if the GOMOR was filed in his OMPF, irreparable damage would
be done to his otherwise unblemished and highly successful career.  The
applicant also outlined his career accomplishments in the response.  He
further indicated that the GOMOR was the first adverse action of any kind
that he received since enlisting in 1984.  He further stated that given the
highly competitive nature of the officer promotion and selection process,
placing the GOMOR in his OMPF would effectively end his career.

4.  On 9 October 1996, after reviewing the response from the applicant, the
CG, 1st Infantry Division directed that the GOMOR be filed in the
applicant’s OMPF.
5.  On 30 August 2002, the applicant was honorably separated from active
duty, by reason of non-selection for promotion, after completing over 14
years of active military service and transferred to the Reserve Component
(RC), and on 20 May 2003, he was promoted to MAJ in the USAR.

6.  In February 2000, the DASEB, after carefully considering a petition
from the applicant to transfer the GOMOR from performance portion (P-Fiche)
to the restricted portion (R-Fiche) of his OMPF, voted to deny the
applicant’s request.

7.  The DASEB decision summary indicates that the evidence presented by the
applicant in his appeal did show he had learned his lesson.  The DASEB
noted that even after three and one half years since the incident, the
applicant continued to hold that his conduct was an acceptable leadership
style and that he was a victim of poor leadership practices.  Specifically,
the applicant stated that he learned a rough-and-tumble, hard-nosed way of
soldiering that was acceptable.  The DASEB concluded that the applicant’s
admission of fault was disingenuous and it was not convinced that the
appellant had learned his lesson

8.  The applicant’s record shows that since joining the RC in 1999, he has
received four OERs.  Three of these OERs were above center of mass (ACOM)
evaluations and one was a center of mass (COM) evaluation.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures to authorize placement of unfavorable information about Army
members in individual official personnel files, ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files and 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.

10.  Chapter 7 of the same regulation provides the policies and procedures
for appeals and petitions for removal of unfavorable information from the
OMPF.  Paragraph 7-2 states that once an official document has been
properly filed in the OMPF, it is presumed to be administratively correct
and to have been filed pursuant to an objective decision by competent
authority. Thereafter, the burden of proof rests with the individual
concerned to provide evidence of a clear and convincing nature that the
document is untrue or unjust, in whole or in part, thereby warranting its
alteration or removal from the OMPF.
11.  Paragraph 7-2b of the unfavorable information regulation contains
guidance on transfers of OMPF entries.  It states, in pertinent part, that
letters of reprimand, admonition, or censure may be appealed on the basis
of proof that their intended purpose has been served and that their
transfer would 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 approved under this provision will
result in transfer of the document from the performance portion (P-Fiche)
to the R-Fiche of the OMPF

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows the GOMOR was issued and filed in
the OMPF in accordance with the governing law and regulation.  By
regulation, in order to remove this document from the OMPF, there must be
clear and convincing evidence showing that the document is untrue or
unjust.  No such evidence has been provided in this case.

2.  However, the regulation does authorize the transfer of a GOMOR when it
can be determined that the document has served its intended purpose.  The
evidence of record in this case shows the applicant has now accepted
responsibility for his actions and admits there was no excuse for his
actions.

3.  Further, the GOMOR contributed to the applicant being non-selected for
promotion, effectively ending his RA career.  However, the applicant has
responded positively to the reprimand, as evidenced by his continued
outstanding performance in the RC as demonstrated in his OER history for
this period.  Therefore, given the passage of time and the applicant’s
continued value to the Army, it is concluded that the GOMOR in question has
served its purpose. As a result, it would appropriate to transfer it to the
R-Fiche portion of the OMPF at this time.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___MDM_  ___TEO _  ___JRM_  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by transferring the General Officer Memorandum of
Reprimand and all related documents from the performance portion (P-Fiche)
to the restricted portion
(R-Fiche) of his Official Military Personnel File based on it having served
its intended purpose.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
removal of the General Officer Memorandum of Reprimand from the Official
Military Personnel File.




            ____Mark D. Manning____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040004442                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/05                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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