IN THE CASE OF:	  

		BOARD DATE:	 	   28 April 2009

		DOCKET NUMBER:  AR20080011229 


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) that was issued to him on or about 9 February 2006, with all supporting documents, be removed from his official military personnel file (OMPF) or moved to the restricted section.  

2.  The applicant essentially states that he is now retired, and he respectfully requests removal of the GOMOR from his OMPF.  At the time of the incident in question, in his own embarrassment and desire to make it go away, he chose not to present certain factual matters in his defense which may have mitigated the outcome and other facts that were not available at the time.  He believes that these clarifications and subsequent evaluation of his performance of duty and the potential for further service provide appropriate context and clarity to the singular perspective provided in his original response.  He will present relevant substantive and convincing evidence that the information in which the original reprimand was based is in part, untrue and unjust.  He genuinely believes that removing this document from his OMPF would be in the best interest of the Army.  

3.  The applicant states that his record prior to this event was exemplary.  His Officer Evaluation Report (OER) for the period ending 18 December 2005, which includes the date of the event, makes no mention of the incident.  The rater considered the incident and mitigating factors in context.  His rater concluded that he would serve the nation well as a general officer.  As a retired Lieutenant General Mr. S-----r's recommendation is cogent and authoritative.  He believes that his analysis is demonstrative of the appropriate weight to be given to this incident.   He adds that while he never received, nor is there on record a certified true copy of his OER subsequent to the one mentioned above, he was provided with an interim copy with two of the required three signatures electronically affixed.  Repeated attempts to obtain a complete copy through his former chain of command have been unsuccessful.  However, he has provided the electronic signed draft as the best evidence available that the incident had no subsequent impact on his performance of duty or potential for further service.  

3.  The applicant states that while the events described in the GOMOR may be generally true, there are some facts that require correction.  He adds that he did not strike several parked vehicles.  Only one vehicle other than his own suffered damage.  The Prince William County Police Department improperly charged him with hit and run and failure to report property damage.  The law provides for up to 24 hours to report an accident to the proper authorities when the injuries to the driver are severe.  Since he, too, was injured and since he was not provided the opportunity, the court correctly reduced the offense.  

4.  The applicant states that the evidence provided in the police report consisted solely of the statement made by his spouse that evening.  There exists no evidence whatsoever that he physically assaulted his spouse.  Such accounts of the events that evening were based on her words alone.  The Prince William County Court viewed all of these factors in context and dismissed this charge in its entirety.  

5.  The applicant states that he had been appropriately prescribed medication for a number of months in order to help him deal with specific relationship issues which his spouse thrust upon him nearly 9 months prior to the incident.  He was prescribed Ambien.  Unanticipated behavioral changes and memory loss are documented, undesirable side effects of the medication.  Since the Ambien left him with no recollection of the events of that evening, refuting the evidence contained in the police report is impossible.  The applicant believes that the drug Ambien was the proximate cause of his unusual behavior that night.  

6.  The applicant further states that he served honorably on active duty and he was deemed fully qualified to remain on active duty.  He was permitted to remain on active duty an additional 8 months.  Career managers and leaders considered the incident in context and recognized that his continued service was in the best interest of the Army.  In addition, his chain of command considered this incident in the greater context and awarded him the Legion of Merit.  Lastly, he believes that removing the GOMOR will restore the likelihood that he would be favorably considered for recall to active duty.  The continued presence of this document in his OMPF has the potential to limit his service to the Nation.  He believes that the reprimand is in part untrue and significantly misrepresents the characterization of the incident, his service, and his potential for continued service.   

7.  The applicant provides a copy of his OER for the period April 2005 through December 2005 and his retirement OER for the period December 2005 through December 2006; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 5 July 2006; a copy of his DD Form 214 dated 
31 October 2007; and a copy of his award for the Legion of Merit with the narrative for the award submitted in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  When the GOMOR was written, the applicant was serving as a USAR Active Guard Reserve (AGR) colonel, pay grade O-6.  He was assigned to the Office, Chief of Public Affairs (PE&A) Division, 1500 Army Pentagon, Washington D.C.  The applicant was the Chief of the PE&A Division and also was the primary strategic planner for the Soldiers Media Center (SMC).  The applicant also acted as the Reserve Component Advisor to the Commander and the SMC Commander in the Commander's absence.  At the time of his application, the applicant is a retired United States Army Reserve officer in the rank of colonel, pay grade O-6.

2.  On 9 February 2006, the applicant was issued a GOMOR for misconduct on 
13 November 2005, for physically assaulting his spouse by striking her several times, kicking her and grabbing her by the hair and pulling her across the room. 
The applicant's wife fled the house and escaped by car.  The applicant followed her in his own vehicle and struck several parked vehicles in the process.   

3.  In the GOMOR, the general officer informed the applicant that his conduct was inexcusable.  The GOMOR stated "Commission of an assault upon your wife violates the trust of your marriage and is an extremely poor reflection on you as an officer.  Additionally, you exacerbated this shameful conduct by chasing after your wife in your car after heavy drinking, causing damage to several parked cars.  You caused great danger to your wife, your self (sic), and others out in your neighborhood.  This outlandish behavior causes me great concern and leads me to question your lack of fitness for continued service in the United States Army."  The applicant was also informed that the reprimand was imposed as an administrative measure and not as punishment under the provisions of Article 15, Uniform Code of Military Justice.  In accordance with Army Regulation 600-37.  the applicant was informed that he had 10 calendar days from the receipt of the reprimand to submit matters in rebuttal or decline to do so.  

4.  On the same day, the applicant acknowledged receipt of the unfavorable information against him.  He elected to submit a statement in his own behalf.

5.  On 17 February 2006, the applicant submitted a written rebuttal to the reprimand.  In his statement, the applicant stated that he had taken a prescription medicine called Ambien which was prescribed to him for sleep issues.  One of the known side effects of this medicine is the inability to make memories.  Therefore, he states that he has no recollection of the events of that evening.  Nevertheless, he sincerely regrets the events of that evening and regrets the pain, inconvenience and injustice suffered by his family, his neighbors and the U.S. Army.  Prior to the incident, he had an exemplary 27 years of service unmarred by any incident.  Even his driving records from both Virginia and California are spotless.  Since the incident that night, he has taken every opportunity to make amends to all those who were affected by the incident.  His service since the incident has been completely in character with the first 
27 years.  The applicant finally requested that the reprimand not be placed in his OMPF and that he be allowed to continue to serve until his mandatory retirement from active service next year.  

6.  On 2 March 2006, the general officer stated in a memorandum that he had carefully considered the applicant's misconduct and response to the GOMOR.  He directed that the GOMOR be filed in the applicant's OMPF.  

7.  On 31 October 2007, the applicant was honorably released from active duty for the purpose of retirement.  The DD Form 214 he was issued at the time includes the Legion of Merit, the Defense Meritorious Service Medal, the Meritorious Service Medal, the Joint Service Commendation Medal (3rd award), the Army Commendation Medal, the Army Achievement Medal, the Army Reserve Components Achievement Medal, the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Global War on Terrorism Service Medal, the Armed Forces Service Medal, the Army Service Ribbon, the Armed Forces Reserve Medal, the Overseas Service Ribbon, the Armed Forces Reserve Medal w/ M Device (3rd Award), the NATO Medal, the Parachutist  Badge, and the Army Staff Identification Badge.

8.  The applicant submitted with his application a copy of his OER that covered the period from 1 April 2005 through 18 December 2005.  The rater placed the applicant in the block for Outstanding Performance-Must Promote in Part V (Performance and Potential Evaluation) and provided favorable comments that stated that he demonstrated outstanding potential ability to continue significant contributions to the Army.  There should be no limit on his assignments - able to work at the highest levels of government.  He would serve the nation well as a general officer.
9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records), Table 2-1 (Composition of the OMPF) provides, in pertinent part, that administrative letters of reprimand, admonitions, and censures of a non-punitive nature, referral correspondence, and member's reply will be filed in the Performance (Commendatory and Discipline) section of the OMPF, if the provisions of Army Regulation 600-37 have been complied with.

11.  Paragraph 7-2a of Army Regulation 600-37 provides 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.  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 OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 

12.  Paragraph 7-2b of Army Regulation 600-37 also contains guidance on transfers of OMPF entries.  It states, in pertinent part, that letters of reprimand, admonition, or censure 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 burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Appeals approved under this provision will result in transfer of the document from the performance section to the restricted section of the OMPF.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR that was filed in his OMPF issued to him on 2 March 2006, with all supporting documents, should be removed from his OMPF or moved to the restricted section of his OMPF was carefully considered and found to be insufficient in merit. 

2.  The applicant's records clearly show that the applicant received a GOMOR for misconduct and that it was filed in his OMPF.  

3.  The evidence also 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.  
4.  The applicant's entire record of service was considered in determining whether or not to file the GOMOR in his OMPF.  While the applicant's records are otherwise impressive, the egregious acts committed by the applicant near the end of his service, when taken together, do not justify removal of the GOMOR or filing the GOMOR in the restricted portion of his OMPF.  Further, subsequent civilian court action, even if substantiated that reduced criminal charges were preferred, does not undermine the validity of the administrative reprimand. 

5.  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.

6.  The applicant also contends that the GOMOR in part is untrue, unjust and that the medicine he was taking at the time of the incident affected his behavior and memory.  This was also carefully considered.  However, there is no evidence and the applicant did not provide sufficient evidence to support the requested relief.

7.  It could be argued that the applicant's GOMOR has served its purpose.  However, the general officer who issued this GOMOR essentially directed that it be permanently filed in his OMPF.  Also, the applicant’s OMPF might be screened in the future for possible retiree recall to active duty.  It would only be prudent to keep the applicant’s GOMOR in his OMPF, so that Army leaders and decision makers are aware of this incident of demonstrated poor judgment by the applicant.

8.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  In view of the foregoing, there is no basis for granting relief to the applicant in this case. 

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)                                         AR20080011229



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ABCMR Record of Proceedings (cont)                                         AR20080011229



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