RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  19 June 2007
	DOCKET NUMBER:  AR20070000993 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Frank C. Jones II

Member

Mr. Qawiy A. Sabree

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 the General Officer Memorandum of Reprimand (GOMOR), dated 10 December 2005, be removed from his Official Military Personnel File (OMPF).  

2.  The applicant states, in effect, that when his commander counseled him regarding the incident he was informed that the GOMOR would be filed unofficially in the local files.  Instead, the imposing general directed filing in his OMPF.  When the filing error was discovered, the imposing general requested its removal, but to date it has not been removed.

3.  The applicant provides copies of his counseling form, the GOMOR, and the imposing general’s request for its removal.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a United States Army 
Reserve Soldier serving on active duty as a master sergeant, pay grade E8.  He was serving with his unit in support of the war on terrorism.

2.  On 4 December 2005, the applicant was counseled by his commander regarding two incidences of alcohol related offenses.  He was instructed on what was expected of him and told that he would receive a GOMOR that would remain in the local unofficial file.  The applicant indicated that he agreed.

3.  On 10 December 2005, the Deputy Commander, United States Army 63rd Regional Readiness Command, 4235 Yorktown Avenue, Los Alamitos, California 90720-5002, reprimanded the applicant for twice driving with a blood alcohol level in excess of the .10 allowed under Missouri State statute 577.012. The memorandum was imposed as an administrative measure pursuant to Army Regulation 600-37 and not as punishment under Article 15, Uniform Code of Military Justice.  The general informed the applicant that he was considering permanently filing this GOMOR in his OMPF but that he would withhold his final decision as to filing until he received the applicant’s response.  The imposing general informed the applicant that he had the right to submit a statement or rebuttal within 30 days and directed that he acknowledge receipt of the GOMOR within 10 days.

4.  On 22 December 2005, the applicant acknowledged receipt and declined to submit a statement.  

5.  On 7 January 2006, the imposing general sent a memorandum to the Commander, Human Resources Command, 1 Reserve Way, St. Louis, Missouri, directing that the GOMOR and this memorandum be filed in the applicant’s OMPF.

6.  On 8 April 2006, the imposing general sent another memorandum to the Commander, Human Resources Command, 1 Reserve Way, St. Louis, Missouri. He stated in this memorandum that discussions with the applicant’s immediate commander and chain of command determined that the applicant had waived his right to submit a rebuttal because of an erroneous communication indicating that the GOMOR would be filed in his MPRJ.  His chain of command strongly believed the Soldier had rehabilitative potential and could be a continuing asset to the service.  Therefore, in the interest of equity and fairness, the imposing general requested removal of these documents from the applicant’s OMPF and that they be returned to the Commander, 63rd Regional Readiness Command for filing in the applicant’s military personnel records jacket (MPRJ).  

7.  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 in the performance section.  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 Department of the Army Suitability Evaluation Board (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 the restricted section 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 in the performance section, the appeal itself and any associated documents will be filed in the restricted section.  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 under Army regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records clearly show that the applicant received a GOMOR for misconduct and that it was filed in his OMPF.

2.  The evidence shows that the applicant was afforded the opportunity to review all of the evidence against him and to summit matters on his own behalf prior to a final filing decision. However, due to a miscommunication, the applicant was led to believe that the GOMOR would be filed locally. 

3.  However, his miscommunication did not deprive the applicant of due process. The GOMOR notified the applicant that the general was considering permanently filing the reprimand in his OMPF.  This language put the applicant on notice that the decision on where to file the GOMOR was not necessarily a foregone conclusion.  The applicant had 30 days from receipt of the GOMOR to make an inquiry into the contradictory disposition recommendations and to submit a response, which could have included discussion about the filing decision.
  
4.  In view of the above, the applicant’s request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___BJE___  __QAS__  __FCJ __  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.




__     _Barbara J. Ellis____
          CHAIRPERSON


INDEX

CASE ID
AR20070000993
SUFFIX

RECON
 
DATE BOARDED
20070619 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
134.0000
2.

3.

4.

5.

6.