IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20070019022 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the General Officer Memorandum of Reprimand (GOMOR), dated 24 March 2005, be transferred to the restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states that he has always been a Soldier of good integrity and of solid morals.  He states that everything he has worked towards to progress as a noncommissioned officer (NCO) was taken away from him when he received the letter of reprimand and when he was flagged.  He does not feel that anyone had his best interest at heart for two reasons: (1) the incident and the way that it happened and (2) he was a National Guardsman.  He states that he is an NCO with a great responsibility of leading Soldiers and he takes that responsibility very seriously.  He also states that he has been faced with two tours in Iraq and he is on his way to Afghanistan in early 2008.  He further states that he is still strong and looks forward to serving for a number of years to lead Soldiers in the right direction.  

3.  The applicant provides a letter addressed to the Department of the Army Suitability Evaluation Board (DASEB); two memoranda from the President of DASEB; his rebuttal to the GOMOR; a webpage from the Integrated Personnel Electronic Records Management System Online; his Enlisted Record Brief; his commanding officer recommendation for separation under the provisions of Army Regulation 635-200, chapter 7-17; a letter from the Army Review Boards Agency, Support Division, St. Louis; and his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 November 1995.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Army National Guard, the U.S. Army Reserve, and the Regular Army, the applicant enlisted in the Mississippi Army National Guard on 21 December 1999.  He was promoted to staff sergeant on 1 July 2001.

2.  On 24 March 2005, the applicant received a GOMOR for larceny and for a lack of integrity.  On 5 February 2005, the applicant knowingly and wrongfully took a 50 percent sticker off a pair of shoes that was on sale and placed that sticker on a pair of shoes that was not on sale at the Fort Leonard Wood Main Exchange.  He then purchased the shoes with the sticker and wrongfully received 50 percent off the purchase price.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.  He was informed that the GOMOR would be filed in his OMPF.  

3.  The applicant acknowledged receipt of the GOMOR.  He indicated that he understood the unfavorable information presented against him and elected to submit statements in his behalf.  On the morning of 5 February 2005, he was asked to follow a woman to the back of the store.  He was then placed in handcuffs by the Fort Leonard Wood Military Police and escorted out of the store. He states he was not informed that he was suspected of larceny until he had left the store.  He was notified in writing of his potential dismissal from the Chemical Advanced NCO Course (ANCOC).  He provided his rebuttal to the charge of larceny and he was dismissed from the NCO Academy on 28 February 2005.  

4.  In the applicant’s rebuttal to the GOMOR, he gave the facts surrounding the day in question.  He stated that he browsed through the shoe department and noticed many of the shoes were marked with either a red 50 percent off sticker or a yellow 30 percent off sticker.  He inquired of an AAFES [Army and Air Force Exchange Service] associate, S____ B_____, as to whether those shoes were on sale as well.  The AAFES associate replied that the shoes were 50 percent off but had not yet been marked as such.  The AAFES associate made a statement and indicated that she believed she had told him the boots would possibly be on sale later.  He believed that there was a miscommunication between him and the AAFES associate.  He understood her comment to mean the shoes would be marked down later that day.  He admitted that he removed a 50 percent off sticker from another box and placed it on the box that contained the desired shoes.  His sole intent was to purchase the shoes at whatever legitimate price.  He honestly believed that he was paying the required price for the shoes.  He further stated that the AAFES video of the incident described in the CPT A__ S___’s memorandum did not cover the full timeframe in question.  
5.  The applicant further stated that he served in the United States military for a total of 16 years in various leadership positions.  Throughout the course of his career, he collected numerous awards and certificates and his integrity was never called into question.  He stated he served his country with pride and with honor.  He stated that his ability to continue to serve in the United States military and his career progression would be in serious jeopardy if the reprimand was filed in his OMPF.  

6.  On 21 April 2005, a general officer directed the GOMOR be filed in the applicant's OMPF.

7.  The GOMOR and allied documents were filed on the performance file of the applicant's OMPF.

8.  The applicant was ordered to active duty on 20 May 2005 in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 25 January 2005 to 19 January 2006.  On 23 February 2006, the applicant was honorably discharged from active duty and as a member of the Army National Guard by reason of enlistment, reenlistment, immediate reenlistment in any other component of the Armed Forces.

9.  The applicant enlisted in the Regular Army on 24 February 2006 and is currently serving on active duty in the rank of staff sergeant, E-6.  

10.  On an unknown date, the applicant appealed to the DASEB for transfer of the GOMOR to the restricted portion of his OMPF or removal of the GOMOR.  He also requested that the Flag from the Army National Guard be lifted and that a Fraudulent Entry Determination document be transferred to his restricted file.  

11.  In a 21 November 2007, the DASEB voted to deny the transfer of one GOMOR, dated 24 March 2005.  The DASEB did not address the transfer or removal of Fraudulent Entry Determination document.  

12.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records (ABCMR); the DASEB; the Army Appeals Board; Chief of Appeals and Corrections Branch of the U.S. Army Human Resources Command; the OMPF custodian when documents have been improperly filed; Commander, U.S. Army Human Resources Command (HRC); Chief of the Appeals Branch of the U.S. Army HRC – St. Louis; and Chief of the Appeals Branch of the National Guard Personnel Center.

13.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files.  Paragraph 3-4(b) states that a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer (to include one frocked to the rank of 
brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed on the performance portion (P-fiche).  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a GOMOR on 24 March 2005 for larceny and for a lack of integrity.  

2.  The evidence of record shows the GOMOR and allied documents were properly filed on the performance fiche of the applicant's OMPF in accordance with applicable regulations.

3.  The applicant appealed to the DASEB to transfer or remove the GOMOR.  The DASEB voted to deny transfer of the GOMOR to the restricted portion of the applicant's OMPF.

4.  The applicant's contentions have been noted.  However, absent other evidence, such as recommendations from his chain of command, there is insufficient evidence at this time to show the GOMOR has served its intended purpose.  It is also noted that the applicant stated in his rebuttal to the GOMOR that he understood the AAFES associate’s comment to mean the shoes would be marked down later in the day.  Yet, he placed the 50 percent off sticker on the shoes right then.  That contradicts his contentions that he intended to purchase the shoes at whatever legitimate price.  If that had been his intention, he could have gone back to buy the shoes later in the day.  

5.  There is no evidence of record which shows that the GOMOR was filed in error.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

xx______  xx______  xx______  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.




             _xxx___   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20070019022



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ABCMR Record of Proceedings (cont)                                         AR20070019022



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