IN THE CASE OF:	  

	BOARD DATE:	  10 June 2008

	DOCKET NUMBER:  AR20080006723 


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 two general officer memorandums of reprimand (GOMORs) be transferred to the restricted section of his Official Military Personnel File (OMPF), and he requests promotion reconsideration to Sergeant First Class, E-7.

2.  The applicant states that he believes it is unjust to keep the two GOMORs in their current location in that they served their purpose years ago.  He has not only learned from those mistakes, but he has used them as tools when mentoring his Soldiers.  He accepts full responsibility for his actions that occurred over      10 years ago.  According to a comparison of his records with those of his peers who have been selected for promotion, the only contributing factor for his not being selected is the presence of the GOMORS on his performance fiche.  According to his Career Manager, his records have been looked at for recruiting, drill sergeant, and Army Medical Department instructor but were all denied due to the GOMORs in his files.  Moving these GOMORs to his restricted fiche and reconsidering him for promotion to Sergeant First Class will ensure the Army benefits from his full potential by enabling him to be assigned to positions of greater responsibility.

3.  The applicant provides three Noncommissioned Officer Evaluation Reports (NCOERs), for the periods ending 15 November 2007, 30 November 2006, and November 2005; a DA Form 638 (Recommendation for Award), dated 4 October 2007; and his Enlisted Record Brief.


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 September 1990.  He completed basic training and advanced individual training and was awarded military occupational specialty 91A (Medical Specialist).  

2.  On 19 March 1996, the applicant was given a GOMOR for operating a vehicle while under the influence of alcohol on 19 February 1996.

3.  On 1 December 1996, the applicant was promoted to Sergeant, E-5.

4.  On 9 January 1998, the applicant was given a GOMOR for operating a vehicle while under the influence of alcohol on 31 December 1997.  He had been involved in an automobile accident while he was drinking, resulting in the death of local national and serious injury to another.

5.  On 26 June 1998, the applicant was tried by court-martial for three offenses (involuntary manslaughter; assault; and drunk driving) related to the incident for which he was given the second GOMOR and was found not guilty of all three offenses.  He had been charged with an offense (drunk driving) for which he was given the first GOMOR, but the military judge dismissed the charge.

6.  On 1 July 2000, the applicant was promoted to Staff Sergeant, E-6.

7.  The applicant provided NCOERs for the periods ending 15 November 2007, 30 November 2006, and November 2005.  These NCOERs, plus his other NCOERs for the periods after his second GOMOR, contain all laudatory comments and a number of “excellence” ratings.

8.  On 21 October 2004, the Department of the Army Suitability Evaluation Board (DASEB) denied the applicant’s request to transfer the two GOMORs to his restricted fiche.

9.  Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it 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.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.  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.  

10.  Army Regulation 600-8-19 prescribes the policies and procedures for promotion of enlisted personnel on active duty.  This regulation specifies that promotion reconsideration by a standby advisory board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant had two serious driving-while-under-the-influence incidents while he was an NCO, and it is recognized that the DASEB denied, in 2004, the applicant’s request to transfer the GOMORs issued as a result of those incidents.

2.  It is also recognized that more than 10 years have passed since the last incident.  The applicant was promoted to Staff Sergeant, E-6, two years after the last incident.  His NCOERs since that last incident have all been commendable.  The applicant’s record of service appears to confirm his contention that the intended purpose of the GOMORs has been served.  Therefore, it would be equitable to transfer those GOMORs to his restricted fiche at this time.

3.  However, since it does not appear that the GOMORs were issued in error or unjustly, promotion reconsideration to Sergeant First Class by a standby advisory board would not be equitable.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  ___xx___  ____xx__  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 two GOMORs, dated 19 March 1996 and 9 January 1998, and all related documents to his restricted fiche. 

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 promotion reconsideration to Sergeant First Class, E-7. 




 _   _______xxxxx____________
       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)                                         AR20080006723





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ABCMR Record of Proceedings (cont)                                         AR20080006723



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