IN THE CASE OF:	  

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080016504 


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 a general officer memorandum of reprimand (GOMOR) be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the GOMOR in question is more than 10 years old and has served its purpose, as evidenced by the decision of the Department of the Army Suitability Evaluation Board (DASEB) to transfer the document from the performance (P) to the restricted (R) portion of his OMPF.  He claims it is unjust to allow this document to remain in the R portion of his OMPF and to inhibit his potential for advancement.

3.  The applicant provides a self-authored letter to the DASEB and a DASEB memorandum, dated 2 June 2006, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that as of the date of his application to this Board he was serving on active duty in the Regular Army in the rank of staff sergeant (SSG) at Fort Bragg, North Carolina.

2.  On 4 March 1998, while serving as a specialist in Hawaii, the applicant received a GOMOR from the Assistant Division Commander, 25th Infantry Division, Schofield Barracks, Hawaii.  The applicant was reprimanded for driving a motor vehicle on 7 February 1998 while his blood alcohol content was .21 percent.
3.  In the GOMOR, the applicant was directed to acknowledge receipt of the GOMOR and was informed that he had the right to provide written comments concerning the matter and that his reply would be considered before final action was taken.

4.  On 12 March 1998, the applicant acknowledged receipt of the GOMOR and indicated that he would submit a statement or other matters for consideration before a filing decision was made.

5.  On 16 March 1998, the applicant submitted a statement indicating that the civilian police report was not accurate in that it indicated he was driving without his registration, which was not true.  He admitted that his behavior on 7 February 1998 was inappropriate and displayed poor judgment on his part.  He also indicated that he understood "that this incident underscores the army's policy on alcohol and will deter individual's readiness."  He requested that all officers and noncommissioned officers forgive him.

6.  The applicant's unit, battalion, and brigade commanders all recommended the GOMOR be filed in the applicant's OMPF given the absence of any mitigating circumstances or lack of a rational reason for the applicant's actions, and on 12 May 1998, the imposing general officer directed the permanent filing of the GOMOR in the OMPF.

7.  The applicant's record shows that subsequent to receiving the GOMOR, he was promoted to sergeant (SGT), and to SSG on 1 December 2003.

8.  On 2 June 2006, in a memorandum from the President, DASEB, the applicant was notified that the DASEB voted to approve the transfer of the GOMOR, dated 9 March 1998, from the P to the R portion of the applicant's OMPF based on it having served its intended purpose.

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; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to 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.  Chapter 7 of the same regulation contains guidance on removal of unfavorable information from official personnel files.  It states, in pertinent part, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR in question should be removed from his OMPF because it is unjust and could inhibit his potential for advancement was carefully considered.  However, there is insufficient evidence to support this claim.  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.  To support removal of the document from the OMPF, an individual has the burden to provide clear and convincing evidence that the document is untrue or unjust.  The applicant has failed to meet this regulatory burden of proof.

2.  By law and regulation, in order for this Board to support removal of the GOMOR from the applicant’s OMPF, there must be evidence that an error or injustice exists.  In this case, the applicant's record confirms that subsequent to his receipt and the filing of the GOMOR in question, he was promoted to both SGT and SSG.  Therefore, there is no evidence suggesting the applicant's career advancement has been impeded or that he has or will suffer any injustice as a result of the GOMOR being filed in the R portion of his OMPF.

3.  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:

________  ________  ________  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)                                         AR20080016504



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ABCMR Record of Proceedings (cont)                                         AR20080016504



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