IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080010264 


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 his General Officer Memorandum of Reprimand and three memorandums of disqualification of the Good Conduct Medal be removed from the restricted portion of his official military personnel file. 

2.  The applicant states, in effect, that the General Officer Memorandum of Reprimand has served its purpose by correcting his misconduct and he has overcome shortcomings and proven himself as a noncommissioned officer.  He also states, in effect, that he wishes to continue to lead Soldiers at the senior noncommissioned officer level and the General Officer Memorandum of Reprimand is hindering the leadership potential of a future leader.  He further states that 15 years ago he was a young enlisted Soldier and made a bad decision by refusing to submit to a blood alcohol test.  Since that incident, he has grown as an individual, a Soldier, and a leader.  He has served in positions of leadership and has been able to use his past incident as a building block in mentoring other Soldiers.  He has made a conscious commitment to the United States Army and knows that he made a mistake in the past and has learned from it, but should not be made to suffer the consequences by hindering further promotion.

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-2, on 27 December 1990, with prior Reserve enlisted service.  He was promoted to pay grade E-4 on 1 October 1992.

2.  On 20 July 1993, the applicant was issued a General Officer Memorandum of Reprimand for his refusal to submit to a lawfully required blood alcohol test when apprehended for driving while impaired on 26 June 1993.  

3.  On 5 August 1993, the applicant acknowledged receipt of the General Officer Memorandum of Reprimand and elected not to submit a statement in his own behalf.

4.  After review of the General Officer Memorandum of Reprimand, the applicant's chain of command stated that the applicant's failure to comply with State and Federal laws would not be tolerated and his action could not be allowed to go unpunished.  It was recommended the General Officer Memorandum of Reprimand be permanently filed in the applicant's official military personnel file.  

5.  On 13 September 1993, the applicant's commander, a major general, directed the General Officer Memorandum of Reprimand be filed permanently in the applicant's official military personnel file.  

6.  On 1 November 1993, the applicant's unit commander disqualified him for the award of the Good Conduct Medal based on the applicant receiving a General Officer Memorandum of Reprimand.

7.  On 1 November 1993, the applicant was advised by his commander that he was being disqualified for award of the Good Conduct Medal for the period December 1990 to December 1993.  The applicant elected not to submit a statement in his own behalf.

8.  On 16 March 1994, the applicant's unit commander requested he be disqualified for the award of the Good Conduct Medal based on his having received a General Officer Memorandum of Reprimand and being barred to reenlistment and flagged.  The applicant was notified of the action and elected not to submit a statement in his own behalf.  The bar to reenlistment and flagging action were subsequently removed. 

9.  The applicant was promoted to pay grade E-5 on 1 July 1997 and to pay grade E-6 on 1 July 2001.  He reenlisted on 26 July 2002, for an indefinite period and is currently serving on active duty in that grade.

10.  On 29 May 2007, the applicant petitioned the DA Suitability Evaluation Board for removal of his General Officer Memorandum of Reprimand from the performance portion to the restricted portion of his official military personnel file.

11.  On 26 June 2007, the DA Suitability Evaluation Board approved the transfer of the General Officer Memorandum of Reprimand, dated 20 July 1993, from the performance portion to the restricted portion of his official military personnel file. The transfer was based upon intent served and was not to be considered retroactive; therefore, it did not constitute grounds for referral to a Special Selection Board for a previous promotion non-selection.

12.  On 25 July 2007, the applicant petitioned the DA Suitability Evaluation Board, in effect, for removal of his three memoranda of disqualification of the Good Conduct Medal from the performance portion to the restricted portion of his official military personnel file.  

13.  On 31 August 2007, the DA Suitability Evaluation Board approved the transfer of the three memoranda of disqualification of the Good Conduct Medal, dated 1 November 1993, 16 March 1994, and 17 March 1994, from the performance portion to the restricted portion of his official military personnel file.  The transfer was not to be considered retroactive; therefore, it did not constitute grounds for referral to a Special Selection Board for a previous promotion non-selection.

14.  Documents removed from a Soldier's performance portion of his official military personnel file and transferred to the restricted portion of his official military personnel file are not reviewed by promotion selection boards until an individual is being considered for promotion to pay grade E-9 in accordance with Army Regulation 600-8-104, Chapter 2, paragraph 2-6d.

15.  Army Regulation 600-37, in pertinent part, provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that a General Officer Memorandum of Reprimand or a Letter of Reprimand, regardless of issuing authority, may be filed in the official military personnel file only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing. Letters (memorandums) of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  Such documents may be 

appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The DA Suitability Evaluation Board has been established as the appeal and petition authority for unfavorable information entered in the official military personnel file under this regulation.  

16.  Army Regulation 600-37 further specifies that once an official document has been properly filed in the official military personnel file, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole, or in part, or has served its purpose, thereby warranting its alteration or removal from the official military personnel file.

17.  Army Regulation 600-37 also specifies that once an official document has been properly filed in the official military personnel file, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole, or in part, thereby warranting its alteration or removal from the official military personnel file.  

18.  Army Regulation 600-8-104 prescribes the policies and operating tasks for the Military Personnel Information Management Program of the Military Personnel System.  Chapter 2, paragraph 2-6d, of this regulation, specifies that disciplinary information filed on the restricted fiche will be provided to the Command Sergeant Major/Sergeant Major (CSM/SGM) SGM Academy selection and CSM/SGM retention boards to ensure the best qualified Soldiers are selected for these position of the highest trust.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to removal of his General Officer Memorandum of Reprimand, dated 20 July 1993; and the three memorandums of disqualification of the Good Conduct Medal memorandums, dated 1 November 1993, 16 March 1994, and 17 March 1994; from his official military personnel file.  He has not shown error, injustice, or inequity for the relief he now requests.  




2.  The applicant was issued a General Officer Memorandum of Reprimand and was provided the opportunity to rebut his reprimand and did not do so.  The applicant's chain of command felt that his failure to comply with State and Federal laws would not be tolerated and his action could not be allowed to go unpunished.  After considering the documentation and the filing recommendation of the chain of command, it was determined that the General Officer Memorandum of Reprimand be filed permanently in the applicant's official military personnel file.  Based on the issuance of the General Officer Memorandum of Reprimand, the applicant's unit commander requested and recommended the applicant be disqualified for award of the Good Conduct Medal.  The three memoranda pertaining to those actions were also filed in his official military personnel file.

3.  On 26 June and 31 August 2007, respectively, based on requests by the applicant, the DA Suitability Evaluation Board approved the transfer of the General Officer Memorandum of Reprimand and the three memoranda of disqualification of the Good Conduct Medal from the performance portion to the restricted portion of the applicant's official military personnel file.  The DA Suitability Evaluation Board concluded that the documents had served their intended purpose and it would be in the best interest of the Army; however, these actions were not to be considered retroactive.  Therefore, it did not constitute grounds for referral to a Special Selection Board for a previous promotion non-selection.

4.  Based on the foregoing facts and conclusions, the applicant has not provided clear and convincing evidence that the documents were untrue or unjust, in whole, or in part, to support his request for their total removal from his official military personnel file.  The subject documents have been removed from the performance portion of his official military personnel file and as such will not be reviewed by promotion board until he arrives at the point in his career when he is being considered for promotion to pay grade E-9.  Therefore, there is no basis for removing the General Officer Memorandum of Reprimand and the three memorandums of disqualification of the Good Conduct Medal entirely from his official military personnel file.

5.  In view of the foregoing, there is no basis for granting the applicant’s requests.







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)                                         AR20080010264



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ABCMR Record of Proceedings (cont)                                         AR20080010264


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