RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 October 2005
	DOCKET NUMBER:  AR20050000869 


	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. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Richard T. Dunbar

Member

Ms. Laverne V. Berry

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 in effect, that a General Officer Memorandum of Reprimand and related documents be removed from her Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the documents were never meant to be part of her OMPF and that the general officer directed this GOMOR be filed locally for 2 years in her Military Personnel Records Jacket (MPRJ).

3.  The applicant provides a copy of a General Officer Memorandum of Reprimand (GOMOR) from the Commanding General (CG) of the 94th Regional Support Command (RSC), dated 22 July 2000, along with its enclosures; a memorandum concerning the review, consideration and filing of the GOMOR, dated 7 April 2001; applicant's request for reconsideration, dated 28 April 2001; a memorandum concerning the review, reconsideration and filing of the GOMOR, dated 5 May 2001; and a memorandum from the Assistant Staff Judge Advocate, 94th RSC, dated 20 July 2001, concerning the filing of the GOMOR.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the U.S. Army Reserve (USAR) on
17 October 1980 and is currently serving in the Active Guard Reserve (AGR) program in the rank of sergeant first class.

2.  On 22 July 2000, while serving as a member of the Active Guard Reserve and assigned to Headquarters, 655th Area Support Group, Devens, Massachusetts, the applicant received a GOMOR from the CG, 94th RSC.  The document reprimanded the applicant for actions not in keeping with the level of conduct and responsibility expected of a U.S. Army AGR noncommissioned officer and violating Army Regulation 190-51 (Security of Unclassified Army Property (Sensitive and Nonsensitive)) by releasing keys to the supply area to an unauthorized individual.  The CG, 94th RSC, indicated that the applicant admitted that she left her supply room keys at home when she went on temporary duty and gave her boyfriend permission to enter the supply room with her keys in her absence.  The CG, 94th RSC, also indicated that the applicant failed to understand the seriousness of the breach of security which occurred when she allowed her boyfriend to enter the locked supply room on 3 May 2000.

3.  The applicant's record is absent documentation showing her acknowledgement of receipt of the GOMOR for her information and an opportunity for rebuttal.
4.  On 7 April 2001, the CG, 94th RSC, informed the applicant that he had reviewed the documents supplied by her attorney and considered the applicant's comments and information presented during their meeting.  The CG, 94th RSC, indicated that the applicant continued to fail to appreciate the seriousness of her actions.  The CG, 94th RSC, directed that the written reprimand be permanently filed in the applicant's OMPF.

5.  On 28 April 2001, the applicant submitted a request for reconsideration to the CG, 94th RSC.  This document shows the applicant appealed to the CG, 94th RSC, to rescind the GOMOR, or direct that it only be filed locally in her MPRJ.

6.  On 5 May 2001, the CG, 94th RSC, informed the applicant that he had again reviewed the documents supplied by her attorney, considered the applicant's comments and information presented during their meeting, and her request for reconsideration.  Although he remained persuaded that she did commit the breach of security and lapse in judgment detailed in the GOMOR, he directed that the written reprimand be filed locally in her MPRJ for a period of 2 years, rather than permanently in her OMPF.

7.  On 20 July 2001, the Assistant Staff Judge Advocate, 94th RSC, advised the Commander, Army Reserve Personnel Command, St. Louis, Missouri, of the decision by the CG, 94th RSC, to file the GOMOR locally in the applicant's MPRJ and asked that the GOMOR be removed from the applicant's OMPF.

8.  A review of the applicant's OMPF revealed that the GOMOR and supporting documentation are not filed on the performance fiche of her OMPF.  However, this review revealed that there are three documents related to this action filed on the restricted fiche of the applicant's OMPF.  These documents include her request for reconsideration, dated 28 April 2001; the memorandum from the CG, 94th RSC, dated 5 May 2001; and the memorandum from the Assistant Staff Judge Advocate, 94th RSC, dated 20 July 2001.

9.  There is no evidence that the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR from her OMPF.

10.  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. 
11.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records), provides regulatory guidance for filing administrative letters of reprimand, admonitions, and censures of a nonpunitive nature.  It states, in pertinent part, that the letter, referral correspondence, member's reply, and other allied documents (if they are specifically directed for file by the letter or referral correspondence) will be filed on the performance fiche of the OMPF.  All other allied documents not listed will be filed on the restricted fiche of the OMPF.

12.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  It states that appeals and petitions for removal of unfavorable information are to be directed to the DASEB.  Paragraph 7-2 of this regulation 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. 

13.  Paragraph 7-2b of the unfavorable information regulation also contains guidance on transfers of OMPF entries.  It states, in pertinent part, that only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF.  It also states that appeals approved under this provision will result in transfer of the document from the performance fiche to the restricted fiche of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the GOMOR was issued, referred to the applicant, and directed for filing in accordance with the governing law and regulation.  The initial filing instructions by the approving authority directed that the GOMOR be permanently filed in the applicant's OMPF.

2.  Army regulation states that letters of reprimand specifically directed for file in the OMPF by the letter or referral correspondence will be filed on the performance fiche of the OMPF.  Therefore, the letter of reprimand should have been filed by the records custodian on the performance fiche of the applicant's OMPF based upon the approving authority's initial decision.




3.  The evidence of record also shows that upon reconsideration approximately
1 month later, the approving authority changed his decision regarding the filing instructions and directed that the GOMOR be filed locally in the applicant's MPRJ.

4.  Evidence of record shows that the correspondence promulgating the approving authority's decision was forwarded to the proper OMPF records custodian in order to effect compliance with the change in the filing and disposition instructions.

5.  The pertinent Army regulation states that actions approving appeals of GOMOR will result in transfer of the documents from the performance fiche to the restricted fiche of the OMPF.  Therefore, the correspondence that was subsequently placed on the restricted fiche of the applicant's OMPF is properly filed and should not be removed.

6.  By regulation, in order to remove these documents from the OMPF, there must be clear and convincing evidence showing that the documents are untrue or unjust.  No such evidence has been provided in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___CLG _  __RTD__  ___LVB__  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.





____Curtis L. Greenway______
          CHAIRPERSON




INDEX

CASE ID
AR20050000869
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051006
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
134.0100.0000
2.

3.

4.

5.

6.