IN THE CASE OF:	  

		BOARD DATE:	        25 NOVEMBER 2008

		DOCKET NUMBER:  AR20080015937 


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 reconsideration of his previous request that the General Officer Memorandum of Reprimand (GOMOR), dated 24 March 2005, be transferred to the restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states that he has gone through two different agencies to get a wrong corrected.  He states that the first agency outright denied his claim and the second agency did not take the time to properly read his claim.  He states that he has been a Soldier for a long time and that he would like to continue being a Soldier.  He states that he would also like a chance to advance in his career; however, if he cannot get the Letter of Reprimand transferred to the restricted section of his OMPF or removed, there is no reason to continue being a Soldier.  He states that he is no longer with the same chain of command and that he never said that the shoes that he wanted would be marked down at a later date.  He states that he was told by the Army and Air Force Exchange Service (AAFES) associate that the shoes were on sale but they had not put the markdown stickers on the shoes yet.  He states that in regard to the fraudulent enlistment of which he was accused in 1995, it was “not there” when he enlisted.  He states that he told the recruiter everything and because he had been in the National Guard and the Reserve, the recruiter told him that it did not matter.  He states that he was discharged in 1995 and after applying to the Army Review Board his discharge was upgraded to an honorable discharge.  



3.  The applicant states that he knows that he has gotten into trouble as a youngster and that he has learned from his mistakes.  He states that the Article 15 that he was furnished in 1995 for dating while he was married failed to show that he had filed for a divorce and was separated from his wife.  He states that he knows that he is a good Soldier and that he would like to continue leading and training young Soldiers.  He states that he would like to see the fraudulent enlistment removed from his record and to see the GOMOR either removed from his record or placed in the restricted section of his OMPF.  He states that the chain of command that he had during the incident did not care to help him or to stand up for a Soldier who had told the truth and was seeking to prove that his integrity was intact.  He states that he has twice served in Iraq and that he is currently in Afghanistan.  He states that he would like to be promoted and that he should have been promoted in 2005.  These contentions are new arguments which require the Board to reconsider the applicant’s request.

4.  The applicant provides in support of his application, a copy of a memorandum addressed to him from the President, Department of the Army Suitability Evaluation Board dated 21 November 2007, notifying him that his petition had been denied; a copy of his General Officer Memorandum of Reprimand (GOMOR) dated 21 April 2005; a copy of the Army Board for Correction of Military Records, Record of Proceedings, dated 22 May 2008; a copy of his previous Application for Correction of Military Records dated 13 December 2007; a copy of his appeal to the Department of the Army Suitability Evaluation Board (DASEB); copies of memorandums addressed him and his Commander dated 21 November 2007 informing them of the denial of his petition to the DASEB; a copy of his rebuttal to the decision made by the DASEB; what appears to be a copy of webpage from the integrated Personnel Electronic Records Management Systems Online; and numerous documents contained in his official military file.  This amounts to no new evidence that was not previously considered during the initial review of his 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 Records (ABCMR) in Docket Number AR20070019022, on 22 May 2008.

2.  After having had prior service in the Army National Guard, the U.S. Army Reserve, and the Regular Army, the applicant enlisted in the Mississippi Army National Guard on 21 December 1999.


3.  On 24 March 2005, the applicant was furnished a GOMOR for larceny and for a lack of integrity.  According to the GOMOR, on 5 February 2005 he knowingly and wrongfully took a 50 percent sticker off a pair of shoes that was on sale and placed that sticker on a pair of shoes that was not on sale at the Fort Leonard Wood Main Exchange.  He then purchased the shoes with the sticker and wrongfully received 50 percent off the purchase price.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.  The applicant was informed by his Commanding General of his intent to file the GOMOR in his OMPF.  He was also informed that a final determination regarding the filing of GOMOR would be made only after any response that he may wish to make was considered.

4.  The applicant acknowledged receipt of the GOMOR on 25 March 2005.  He indicated that he understood the unfavorable information presented against him and he elected to submit statements in his behalf.  In his rebuttal he stated that on the morning of 5 February 2005, he was asked to follow a woman to the back of the store.  He stated that he was then placed in handcuffs by the Fort Leonard Wood Military Police and escorted out of the store.  He stated that he was not informed that he was suspected of larceny until he had left the store and that he was notified in writing of his potential dismissal from the Chemical Advanced NCO Course (ANCOC) on 7 February 2005.  He stated that he provided his “original” rebuttal to the charge of larceny on 15 February 2005 and that he was dismissed from the NCO Academy on 28 February 2005.  

5.  In the applicant’s rebuttal to the GOMOR, he gave the facts surrounding the day in question.  He stated that he browsed through the shoe department and noticed many of the shoes were marked with either a red 50 percent off sticker or a yellow 30 percent off sticker.  He inquired of an AAFES associate as to whether the shoes were on sale as well.  He stated that the AAFES associate replied that the shoes were 50 percent off but had not yet been marked as such.  He stated that the AAFES associate made a statement and indicated that she believed she had told him the boots would possibly be on sale later.  The applicant stated that he believed that there was a miscommunication between him and the AAFES associate.  He stated that he understood her comment to mean the shoes that he was considering buying would be marked down later that day and were actually on sale.  In his rebuttal he admitted that he removed a 50 percent off sticker from another box and placed it on the box that contained the desired shoes.  He stated that his sole intent was to purchase the shoes at whatever legitimate price and that he honestly believed that he was paying the required price for the 



shoes.  He stated that the AAFES video of the incident did not cover the full timeframe in question and he went on to explain why he believed that the GOMOR should be filed either locally or in the restricted section of his OMPF.  

6.  On 21 April 2005, a general officer directed the GOMOR be filed in the applicant's OMPF.  Accordingly, the GOMOR and allied documents were filed in the performance section of the applicant's OMPF.

7.  The applicant was ordered to active duty on 20 May 2005 in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 25 January 2005 to 19 January 2006.  On 23 February 2006, the applicant was honorably discharged from active duty and as a member of the Army National Guard by reason of enlistment, reenlistment, immediate reenlistment in any other component of the Armed Forces.

8.  The applicant enlisted in the Regular Army on 24 February 2006 and is currently serving on active duty in the rank of staff sergeant, E-6.  

9.  On an unknown date, the applicant appealed to the DASEB for transfer of the GOMOR to the restricted section of his OMPF or removal of the GOMOR.  He also requested that the Flag (suspension of favorable personnel action) from the Army National Guard be lifted and that a Fraudulent Entry Determination document be transferred to his restricted file.  

10.  On 21 November 2007, the DASEB voted to deny the transfer of the GOMOR, dated 24 March 2005.  The DASEB did not address the transfer or removal of Fraudulent Entry Determination document.  

11.  On 22 May 2008, this Board denied the applicant’s request for transfer of the GOMOR dated 24 March 2005 from the performance section of his OMPF to the restricted section of his OMPF.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records (ABCMR); the DASEB; the Army Appeals Board; Chief of Appeals and Corrections Branch of the U.S. Army 



Human Resources Command; the OMPF custodian when documents have been improperly filed; Commander, U.S. Army Human Resources Command (HRC); Chief of the Appeals Branch of the U.S. Army HRC – St. Louis; and Chief of the Appeals Branch of the National Guard Personnel Center.

13.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files.  Paragraph 3-4(b) states that a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer (to include one frocked to the rank of 
brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed on the performance section (P-fiche).  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  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.  

DISCUSSION AND CONCLUSIONS:

1.  By regulation, 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 clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its removal from or transfer within the OMPF.

2.  The evidence of record confirms that the GOMOR in question was issued and filed in accordance with the applicable regulation.  The available evidence indicates that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the process.

3.  The applicant’s contentions have been noted.  However, none of his contentions either individually or in sum, are sufficiently mitigating to warrant the requested relief.  The evidence of record shows that the applicant was furnished a GOMOR for larceny and for a lack of integrity as a result of knowingly and wrongfully taking a 50 percent sticker off a pair of shoes that was on sale and placing that sticker on a pair of shoes that was not on sale at the Fort Leonard 



Wood Main Exchange.  He submitted a rebuttal to the GOMOR and after consideration of his rebuttal, the appropriate authority directed that the GOMOR be filed in the performance section of his OMPF.  

4.  There is no evidence in the available record nor has the applicant submitted any evidence that shows the GOMOR was improperly filed or that it has served its intended purpose.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  In order to justify correction of a military record the applicant must show 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.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070019022, dated 22 May 2008.




      _______ _XXX   _______   ___
               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)                                         AR20080015937



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ABCMR Record of Proceedings (cont)                                         AR20080015937



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