IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080001077 


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.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant requests, in effect, that the General Officer Memorandum of Reprimand (GOMOR), dated 11 December 1999, be removed from his Official Military Personnel File (OMPF).

3.  The applicant states, in effect, that the GOMOR has served its purpose and he has learned from his past mistake.  

4.  The applicant provides a memorandum of explanation, dated 16 January 2008; his Enlisted Record Brief (ERB), dated 10 January 2008, and five Non-Commissioned (NCO) Officer Evaluation Reports.



CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he is currently serving on active duty in the rank of master sergeant/pay grade E-8.

2.  On 7 October 1992, the applicant received a GOMOR for operating a vehicle while intoxicated with a blood alcohol content of .25 percent.  Military regulations show that you are in violation of the Department of the Army policy for operating a motor vehicle if your blood alcohol content is higher than .10 percent.  Therefore, the GOMOR was imposed as an administrative measure and not as punishment under Article 15 of Uniform Code of Military Justice.  The applicant was informed that the GOMOR could be filed in his OMPF.  His company commander recommended that the GOMOR be filed in the applicant's local file and the battalion and brigade commanders recommended the GOMOR be filed in his OMPF.

3.  The applicant acknowledged receipt of the GOMOR on 27 October 1992 and also elected not to submit a rebuttal in his own behalf.  

4.  On 11 December 1992, the major general in command directed that the GOMOR be filed in the applicant's OMPF.  The GOMOR and applicable personnel documents were filed on the performance portion of the applicant's OMPF.

5.  On an unknown date, the applicant appealed to the DASEB to transfer the GOMOR to the restricted portion of his fiche.  

6.  On 6 May 1999, the DASEB voted to transfer the GOMOR to the restricted portion of his OMPF.  The DASEB based the transfer upon intent served, not to be considered retroactive and, therefore, did not constitute grounds for referral to a Standby Advisory Board (STAB) for a previous non-selection.  

7.  The applicant's NCOER's covering the periods June 2003 through 31 January 2007 show the rater marked his overall performance as "Successful" and placed an "X" in Block 1.  The applicant's NCOER's also show the rater marked his overall potential for promotion and/or service in positions of greater responsibility as "Superior" and place an "X" in Block 1.

8.  The applicant's Enlisted Record Brief, dated 10 January 2008, show in Section III - Service Data that he was promoted to the rank of First Sergeant on 1 March 2004.


9.  In his memorandum, the applicant points out that the GOMOR was added to his OMPF almost 15 years ago.  He continues that it shows him in the rank of specialist and that he accepted responsibility for what he had done.  The applicant adds that the GOMOR has served its intent and he is a better Soldier now. The applicant continues that he has learned from his past and considers himself to be one of the best leaders as a first sergeant in the Army today.  The applicant adds that he could someday be a great sergeant major and/or command sergeant major if selected for promotion in the future.  The applicant continues that he served in a first sergeant position for the past 42 months and continues to serve as a first sergeant now.  The applicant adds that he performs his duties very well, is dedicated to leading and training the Soldiers in today's Army and would like the GOMOR removed from his OMPF. 

10.  The applicant's record shows that the 29th Engineer Battalion (Topographic), Fort Shafter, Hawaii, on 29 May 1998, awarded the Army Commendation Medal to applicant for his exceptionally Meritorious Service while assigned as the Unit's Motor Sergeant for the period 8 August 1995 through 7 August 1998.  The recommendation stated that the applicant was recognized for sustained outstanding performance and setting the standard for the United States Army Reserve Maintenance Programs.  The recommendation also shows that the applicant's dedication to duty and mission accomplishment reflect great credit upon himself, his unit, and the United States Army.

11.  The applicant's record shows that the 46th Engineer Battalion (Combat) (Heavy), Fort Polk, Louisiana, on 19 May 1999, awarded the Humanitarian Service Medal to the applicant for direct participation in the relief Operations of Hurricane Mitch in Central America during the period of service 7 December 1998 through 20 February 1999.

12.  The applicant's record shows that the Department of the Army, Logistics Task Force 94, Kandahar, Afghanistan on 18 June 2006, awarded the Army Good Conduct Medal (6th Award) to the applicant for exemplary behavior, efficiency, and fidelity in active Federal Military Service during the period of service 19 May 2003 through 18 May 2006.








13.  The applicant's record shows that he was awarded on 10 July 2006, the Bronze Star Medal for exceptional meritorious service in support of Operation Enduring Freedom, Afghanistan during the period 4 March 2006 through 31 July 2006.  

14.  The award also shows that the applicant's personal courage and commitment to mission accomplishment in a combat zone, under the most extreme of circumstances, greatly contributed to the success of Operation Enduring Freedom.  Further, the applicant's performance reflected great credit upon himself, the Combined/Joint Task Force-76, and the United States Central Command.

15.  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.

16.  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 contends that the GOMOR he received on 7 October 1992 for operating a vehicle while intoxicated should be removed from his OMPF, since it has served its purpose and he has learned from his past mistake.  

2.  Evidence of record shows that the DASEB moved the GOMOR to the restricted portion of the applicant's OMPF.
 
3.  The applicant's record of service since the GOMOR was issued includes award of the Army Achievement Medal Fifth Award, the Army Commendation Medal with 2nd Oak Leaf Cluster, the Humanitarian Service Medal, the Army Good Conduct Medal 6th Award, and the Bronze Star Medal.  

4.  The applicant's records also show that he participated in the Relief Operations of Hurricane Mitch in Central America during the period 7 December 1998 through 20 February 1999; Afghanistan during the period 19 May 2003 through 19 May 2006; and in support of Operation Enduring Freedom, Afghanistan during the period 4 March 2006 through 31 July 2006.  The applicant's record shows no subsequent acts of misconduct since his GOMOR was issued.

5.  Although the applicant's commander at the time recommended the GOMOR be filed locally and not placed in his OMPF, the approval authority directed filing the GOMOR in his OMPF.

6.  The applicant's record clearly shows that he has been successful in his military career since the GOMOR was issued.  Based on his overall record which includes participation in combat in support of Operation Enduring Freedom and numerous awards including the Bronze Star Medal, it is reasonable to conclude that the GOMOR has served its intended purpose.  As a result, it would be appropriate in this case to remove the GOMOR, dated 11 December 1999, from the applicant's record.

BOARD VOTE:

____X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the General Officer Memorandum of Reprimand, dated 11 December 1992 from his Official Military Personnel File.




              ___X____   ___
       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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080001077



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1