IN THE CASE OF:	  

		BOARD DATE:	  21 OCTOBER 2008

		DOCKET NUMBER:  AR20080012272 


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, reconsideration of removal of his General Officer Memorandum of Reprimand (GOMOR), dated 3 May 2004, from the performance portion to the restricted portion of his OMPF (Official Military Personnel File).

2.  The applicant states, in effect, that his GOMOR should be removed from the performance portion to the restricted portion of his OMPF.  He also states that after reviewing the "Discussion and Conclusion" section of Docket Number AR20070005672, he found that paragraph Number 4 and 5 were inaccurate and that he did submit evidence to support this fact.

3.  The applicant provides a copy of an extract from USAREC (United States Army Recruiting Command) Regulation 601-45; a copy of his previous case; and a self-authored memorandum explaining the inaccuracy of the Boards findings, in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE

Counsel remains silent and provided no addition information pertaining to the applicant's case.





CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Record (ABCMR) in Docket Number AR20070005672, on 22 May 2007.

2.  The Board denied the applicant's request for removal of his GOMOR from his OMPF.

3.  The Board concluded that the applicant violated USAREC Regulation by interfering with the legal process of an "applicant."  The applicant did not deny that he interfered with the legal process; but denied that he violated USAREC Regulation 601-45, because the Soldier was already assessed, so he should have been able to help the Soldier.  There was no confusion on the part of USAREC.  The Soldier was waiting to ship to "BT/AIT" (basic training/advanced individual training) and could not ship without paying his fine.  The applicant (the recruiter) crossed the boundary established by USAREC Regulation 601-45 when he intervened in the civilian criminal process.  

4.  The applicant's new argument is that inaccurate information was provided to the ABCMR which resulted in conclusion statements made by the Board that were not facts.  The ABCMR came to a false and inaccurate conclusion in their findings.  In the Discussion and Conclusion section of Docket Number AR20070005672, line Number (paragraph) 4 and 5, the Board made statements and a determination that were not true according to the information contained in USAREC Regulation 601-45.  

5.  The applicant states that the Board findings in paragraph 4 of the Discussion and Conclusion section, of Docket Number AR20070005672, were stated as followed:  Unfortunately, whether the Soldier was assessed in the USAR (United States Army Reserve) or not, the interference by the applicant was clearly not in compliance with USAREC Regulation 601-45, because a Field Recruiter could not interfere with the legal processing of anyone whether or not any processing or enlistment occurred.  The applicant states that there were a couple of things that the Board should examine a little closer.

	a.  A recruiting impropriety (RI) as defined in USAREC Regulation 601-45,    2-2a(1) states that it is acts or omissions in violation of law or regulation with the intent to enlist a person not qualified for enlistment or whom the recruiter believes is unqualified for enlistment.  The regulation was clearly focused on RI as an act to get an applicant qualified to enlist and the Soldier he helped, PVT K___, was not trying to enlist.  He was already accessed into the Army Reserve and was a Soldier who fell under the complete jurisdiction of his unit commander.
	
b.  The Board misquoted the regulation when it stated, that a Field Recruiter could not interfere with legal processing of anyone, whether or not any processing occurred.  Chapter 2-2a(4) states that absent evidence of an innocent purpose intentional violations of any specific prohibitions identified in paragraph 2-3, whether or not any processing or enlistment occurred.  The term "anyone" was not listed in this regulation and was added by the Board.  The reason it was not used that way was because this regulation only pertains to applicants trying to enlist into the Army.  There is no regulation that prevents a Soldier from assisting another Soldier with the legal process.  To say that no Field Recruiter can not help anyone in the legal process is completely outside the scope of Army USAREC Regulation 601-45.

c.  USAREC Regulation 601-45, 2-2a(4), as stated, is clear when it "states intentional violations of any specific prohibitions identified in paragraph 2-3."  The specific prohibitions in paragraph 2-3 that were listed were clear when it talked about recruiters helping an applicant with the criminal process to get them qualified to enlist or access.  To take the first sentence of 2-3a(1) on its own was a misinterpretation of this regulation and chapter.  The sentence leads into the specific things that recruiters were not allowed to do as outlined in paragraph     2-2a(4) to get them qualified or access which were not addressed by the Board in its findings.  PVT K___ had already enlisted and accessed when the incident occurred, so USAREC Regulation 601-45 did not pertain to this set of circumstances and should not have had any bearing.

6.  The Board stated in paragraph 5, of the Discussion and Conclusion Section, of Docket Number AR200070005672, that there was no confusion on the part of USAREC.  The Soldier was waiting to ship to "BT/AIT" and could not ship without paying his fine.  The recruiter crossed the boundary established by USAREC Regulation 601-45 when he interfered with the civilian criminal process.  If the Soldier was assessed into the USAR system, as stated, then it should be the Soldier's chain of command's responsibility to ensure that the Soldier shipped to "BT/AIT."  The Board was incorrect on a couple of points in their finding. 

	a.  Yes, the Soldier was waiting to ship to BT/AIT but because he had accessed into and was part of the USAR, paragraph 2-3 did not pertain to him any longer.  The Board got it wrong on this point.  If he had joined the Regular Army (RA) and was waiting to ship to BT/AIT, he would have had to pay the ticket before he left and a recruiter would not have been able to assist him because he still belonged to USAREC until he shipped and had not accessed yet.  This was the major difference from Soldiers enlisting and accessing into the USAR.  A speeding ticket is a traffic violation and would not have prevented him from shipping to BT/AIT.  He paid the fine and that was all he needed to do.  USAREC would have no choice but to ship him because he belonged to his Unit Commander and not USAREC from the day he enlisted.  This was a major point that the Board did not get correct in its findings.

	b.  The Board also stated, "if the Soldier was accessed in the USAR System, as stated, then it should be the Soldier's chain of command responsibility to ensure that the Soldier ship to BT/AIT."  This statement applies two things that were not true:  

		(1)  By using the word "if," it implies that the Board did not believe he accessed into the USAR the day he enlisted.  The Soldier did access that day and by him accessing into the USAR it took him outside the scope of USAREC Regulation 601-45.  He previously provided a memorandum from an Army Reserve MEPS (Military Entrance Processing Station) Guidance Counselor supporting this fact.  There was no question about this fact and it was key in supporting his argument that he did not violate any regulation; and 

		(2)  In regards to the Board's statement that it was the Soldier's chain of command's responsibility to ensure the Soldier shipped to BT/AIT.  As a recruiter, once the Soldier enlisted, their roles changed from that of a recruiter to a first line supervisor and it was a shared responsibility of both the unit and the recruiter.  USAREC required recruiters to make weekly contact with them, do physical training (PT) with them, train them on the pre-basic training task so their commander could promote them before they ship, keep them pumped up and ready to meet their Drill Sergeants, handle any problem that came up, and drove them to MEPS the day before they leave for BT/AIT.  The units do not do this on the weekend drills and generally do not take care of their Soldiers until they come back from training.  USAREC expects the relationship to continue to ensure the Soldier is trained and to keep the lines of communication open for future referrals for enlistment.  The units rely on the recruiters to accomplish this as well.  Recruiters are part of the new Soldier's life from day one and the recruiter is the only chain of command they know and trust.  This is why the statement made by the Board regarding the chain of command being responsible to ship the Soldier is not accurate or true.

7.  The GOMOR is a blemish on an otherwise outstanding 22-year military career.  He hopes the Board will examine the facts that he has presented, verify that a USAR Soldier could ship with an open charge through a Reserve Guidance Counselor at MEPS, that the Soldier did in fact access and did not fall into the scope of USAREC Regulation 601-45, and that reasonable person could read and understood the regulation the way he has presented.  He states that it would be an injustice to have his career progression stop because of this GOMOR in his OMPF.  He states that he is a great NCO and having his promotion to MSG (Master Sergeant) held up for the last 4 years has been 
punishment enough.  He concludes that this Board could correct this error by placing the GOMOR in the restricted portion of his OMPF.

8.  USAREC Regulation 601-45, states, in pertinent part, that Field Recruiter improprieties includes acts or omissions in violation of law or regulation with the intent to enlist a person not qualified for enlistment or whom the recruiter believes  is unqualified for enlistment.  Any Acts or omissions in violation of law or regulation with the intent to grant a person a specific option, MOSC (MOS Code), educational benefit, bonus, or other enlistment benefit for which an applicant is ineligible or whom the recruiter does not believe is eligible.  Gross negligent acts or omissions in violation of law, regulation, or policy resulting in a fraudulent, erroneous, or defective enlistment or reporting to active duty (AD) or transfer of an unqualified person.  Absent evidence of an innocent purpose intentional violations of any specific prohibition identified in paragraph 2-3, whether or not any processing or enlistment occurred.

9.  Paragraph 2-2a(1) states that RIs include any of the following:  (1) Acts or omissions in violation of law or regulation with the intent to enlist a person
not qualified for enlistment or whom the recruiter believes is unqualified for enlistment; (2) Acts or omissions in violation of law or regulation with the intent to grant a person a specific option, MOSC, educational benefit, bonus, or other enlistment benefit for which an applicant is ineligible or whom the recruiter
does not believe is eligible; (3) Grossly negligent acts or omissions in violation of law, regulation, or policy resulting in a fraudulent, erroneous, or defective enlistment or reporting to active duty (AD) or transfer of an unqualified person; and (4) Absent evidence of an innocent purpose intentional violations of any specific prohibition identified in paragraph 2-3, whether or not any processing or enlistment occurred.

10.  Paragraph 2-3a(1)(2), states, in pertinent part, that recruiters are prohibited from interfering with the civilian criminal process.  Recruiters will not allow persons who have an unpaid fine or are pending charges (including unfiled charges known to the recruiter) to enter the Delayed Entry Program (DEP) Future Soldier Training Program (FSTP) or access until all such restrictions are removed.  Likewise recruiters will not allow individuals who are confined in any criminal justice facility, on probation, parole, or similar status to enter the DEP FSTP or access until all such restrictions are removed.  Recruiters are further prohibited from participating in the release of individuals from such restrictions, whether by paying fines, appearing in court with applicants, testifying for applicants, or interceding on behalf of these individuals in any manner.  Applicants are required to disclose all prior and pending law violations, whether civilian or military.  Recruiters are prohibited from concealing, assisting in the concealment, or advising an applicant to conceal any disqualifying information.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's new arguments were carefully considered.  After a review of his arguments, in detail, it was noted that there was no new evidence to show that inaccurate information was provided to the Board.  There also was no new evidence to show that the Board made false and inaccurate conclusion in the Discussion and Conclusion section of Docket Number AR20070005672 or that the Board made statements and determinations that were not according to USAREC 601-45.

2.  In the applicant's previous case, it was determined that he did violate USAREC Regulation 601-45 by interfering with the legal process of an "applicant."  He denied that he did not violate USAREC 601-45 because the Soldier was already assessed into the USAR system, so he should have been able to help the Soldier.  The Board therefore, concluded that he crossed the boundary established by USAREC Regulation 601-45 when he intervened in the civilian criminal process.

3.  As stated, in his earlier case, the Board denied removal of his GOMOR from the performance portion to the restricted portion of his OMPF.

4.  The GOMOR was properly imposed and is properly filed in the performance section of the applicant's OMPF.  

5.  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.

BOARD VOTE:

_____x__  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the available evidence was sufficient to warrant a recommendation for relief.  Although the GOMOR was warranted, it should be moved from the performance portion to the restricted portion of the OMPF. 

2.  The Soldier made a plausible case, based on new evidence provided that the USAR status of the new recruit warranted a different approach than what is mandated for a Delayed Entry Program (DEP) Soldier.  Although the Soldier violated the letter of the policy, he met the intent of the policy.  The GOMOR has already served its purpose.

3.  Therefore, the Board determined that the overall merits of this case are sufficient as a basis to amend the decision of ABCMR set forth in Docket Number AR20070005672, dated 22 May 2007, as stated above.




________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.