IN THE CASE OF:	  

	BOARD DATE:	  4 November 2008

	DOCKET NUMBER:  AR20080007759 


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 3 July 2006, be removed from his Official Military Personnel File (OMPF). 

2.  The applicant states that the GOMOR was put into his OMPF even after he explained in his rebuttal that he had not done what he was accused of doing.  He alleges that the polygraph and subsequent interrogation also supported his claim of innocence.  He has already suffered the humiliation of being removed from his leadership position and the sensitive program in which he was involved and placed in an administrative office until his retirement.  To have the GOMOR permanently filed in his OMPF is unjust because he served for almost 24 years in the Army without a single security violation or having any unfavorable action taken against him.

3.  The applicant provides a copy of his letter to his United States Senator, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was retired from the Regular Army in the rank of master sergeant, pay grade E-8.  

2.  On 3 July 2006, the applicant received a formal, written GOMOR for misconduct.  It stated, in effect, that in 1997 he had used a physical countermeasure to manipulate the results of a polygraph examination.  It further stated that the applicant had advised a subordinate to use the same countermeasure technique in 2001.   The basis for this GOMOR was his admission of this misconduct during a recent U.S. Army Intelligence investigation.  The applicant was further informed that this written reprimand was imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice.

3.  On 29 August 2006, the applicant rebutted the GOMOR.  He acknowledged taking a polygraph examination in 1997 and employing a technique that he had jokingly been told would allow someone to pass a polygraph examination.  He admitted that what he did was wrong even though he did not lie on the examination.  He regretted his action.  He further denied having discussed this technique with anyone else.  The applicant asked that the GOMOR be rescinded, or that it be filed locally, so that he could continue to support the intelligence community whether in the military or as a civilian after retirement.

4.  On 14 September 2006, the imposing commander, a major general, after reviewing the applicant’s response, determined that the facts associated with the applicant’s misconduct were sufficiently established by the record.  The applicant’s lack of professionalism and commitment to the Army values of integrity caused him great concern about the applicant’s future as a noncommissioned officer in the United States Army.  The imposing commander further determined that the unfavorable information upon which the GOMOR was based had been properly referred to the applicant and directed that the GOMOR be filed in the applicant's OMPF.

5.  On 16 April 2008, the applicant wrote a letter to his United States Senator stating, in effect, the circumstances of his GOMOR and how he was threatened with the loss of his retirement if he did not take another polygraph examination and admit to the use of physical countermeasures.  He further stated to the Senator that at the time his father was terminally ill and had subsequently died from cancer.  This caused his thinking to be less than clear and had greatly influenced his giving in to their demands during the long interrogation that followed his May 2006 polygraph examination.  He asked the Senator to help him remove the GOMOR from his OMPF.

6.  There is no evidence showing that the applicant ever appealed to the Department of the Army Suitability Evaluation Board (DASEB) for relief prior to his retirement. 


7.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part, that an administrative memorandum 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 memorandum 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.  A memorandum 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 memorandum.  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.  A memorandum 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 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 memorandum 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.  His response was received and considered.  Subsequently, the GOMOR was referred by a major general for filing in the applicant’s OMPF.

3.  The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of the applicant’s OMPF.  There is no evidence of any violation of any of the applicant’s rights.

4.  The applicant has not provided sufficient evidence or argument to form a basis for removing the GOMOR from his OMPF, or for moving it to the restricted portion of his OMPF. 

5.  The applicant has not provided any evidence or mitigating argument to show that the report of investigation used as a basis for the GOMOR denied him due process.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X____  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.



	__________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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080007759



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