IN THE CASE OF:	  

		BOARD DATE:	  6 January 2009

		DOCKET NUMBER:  AR20080016578 


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 effective date of transfer of a general officer memorandum of reprimand (GOMOR) from the performance to the restricted portion of his Official Military Personnel File (OMPF) be made retroactive.

2.  The applicant states, in effect, that because the Department of Army Suitability and Evaluation Board (DASEB) did not make the transfer of his GOMOR to the restricted portion of his OMPF retroactive, he cannot be reconsidered for promotion to lieutenant colonel (LTC) by a special selection board (SSB), and he will be forced to leave the Army by 1 January 2009.  However, he claims the commanding general (CG) who directed the filing of the GOMOR in the performance portion of his OMPF did not intend to end his career. 

3.  The applicant provides the following documents in support of his application:  Army Special Review Boards letter, dated 26 September 2008; DASEB Record of Proceedings, dated 25 September 2008; imposing CG support memoranda, dated 20 August 2008 and 20 October 2008; and third party (chain of command) support memoranda, dated 22 August 2008, 25 August 2008, and 20 October 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he was appointed a second lieutenant in the United States Army Reserve (USAR) on 14 May 1989 and has continued to serve in various statuses in the USAR since that time.  He was promoted to major on 1 September 2002.

2.  On 16 June 2005, while the applicant was serving on active duty, the Acting Commander, Headquarters, United States Army Signal Center and Fort Gordon, Fort Gordon, Georgia, issued the applicant the GOMOR in question.  On 23 January 2006, the CG, Headquarters, United States Army Signal Center and Fort Gordon, directed the GOMOR be filed in the performance portion of the applicant’s OMPF.

3.  On 16 September 2005, the Army Human Resources Command, St. Louis, issued Orders A-09-591879, which ordered the applicant to active duty as an obligated volunteer officer for 3 years in a voluntary indefinite status to begin on 1 November 2005.

4.  On 29 October 2007, the applicant petitioned the DASEB requesting that the GOMOR be transferred from the performance to the restricted portion of his OMPF.  The DASEB contacted the CG that directed the filing of the GOMOR who indicated he did not concur with the GOMOR transfer; however, had the applicant contacted him personally, he would have considered doing so.

5.  On 26 February 2008, the DASEB denied the applicant’s appeal indicating that the intended purpose of the GOMOR had not been served.

6.  On 31 August 2008, the applicant again petitioned the DASEB for transfer of the GOMOR in question to the restricted portion of his OMPF.  With this application, he provided a supporting memorandum from the CG who directed the GOMOR filing, in which the CG indicated that he supported the transfer of the GOMOR to the restricted portion of the OMPF because it had served its intended purpose.

7.  On 25 September 2008, the DASEB approved the transfer of the GOMOR from the performance to the restricted portion of the applicant’s OMPF and indicated that the transfer action was not retroactive and, therefore, there were no grounds for promotion reconsideration.

8.  The applicant's OMPF contains three OERs which end on 5 October 2006, 5 October 2007, and 19 June 2008, which he has received since the filing of the GOMOR.  The first report evaluated the applicant as a Nuclear Research Officer in the 20th Support Command, Aberdeen Proving Grounds, Maryland, and was a highly favorable center of mass report.  The last two evaluated the applicant as the Chief, Weapons of Mass Destruction (WMD) Coordination Element, of the same organization and were highly favorable above center of mass reports.  All the reports contained rater and senior rater recommendations that the applicant be promoted to LTC.

9.  The applicant submits a memorandum from the CG who directed the filing of the GOMOR who is now a major general and the Director, Architecture, Operations, Networks, and Space, Command Information Office/G-6, Office of the Secretary of the Army.  He requested that the transfer of the applicant’s GOMOR to the restricted portion of the OMPF be made retroactive and that the applicant be given promotion reconsideration.  He further recommended that the applicant be allowed to remain on active duty through selective continuation until the promotion reconsideration is complete.

10.  The applicant also provides multiple supporting memoranda from four senior-level Army leaders in the rank of colonel who are either current or former members of his chain of command, one of whom was the applicant’s brigade commander at the time the GOMOR was imposed.  Each of these officials fully and completely supports the applicant’s request for a retroactive transfer of his GOMOR and promotion reconsideration to LTC.  The former brigade commander indicates that he considered the applicant to be a superb Soldier and leader.  He states he has maintained close contact with the applicant who has taken on tough jobs, deployed twice in support of Operation Iraqi Freedom (OIF), and always places the needs of Soldiers and his unit above his own at all times.  He further indicates the applicant has earned the highest trust and confidence of his superiors, peers, and Soldiers through his selfless and outstanding performance and he is convinced the applicant will be selected for promotion to LTC by an SSB.

11.  The Commandant, United States Army Chemical, Biological, Radiological, and Nuclear School, the applicant’s former rater from November 2007 to June 2008, indicates that he chose the applicant to deploy as task force liaison officer in support of a sensitive mission of national importance as part of OIF.  He states that he would not have entrusted the lives of his Soldiers and the reputation of his command to the applicant if he did not feel strongly about the applicant’s leadership ability and character.  The commandant states that the applicant did not disappoint him and that he contributed immeasurably to the success of the mission.  He further indicates his continued utmost confidence and trust in the applicant’s performance, character, and potential for serving in increased levels of responsibility in the Army.

12.  The applicant’s deputy commanding officer and the Chief, WMD Coordination Element, of his current unit confirm the applicant’s continued exemplary performance, selfless service, and indicate that the applicant is an outstanding leader who is absolutely trustworthy.  The deputy commander officer further indicates the applicant was recognized by the CG for his outstanding performance and potential for continued service at higher levels as evidenced by the applicant’s most recent awards and OERs.

13.  The applicant’s OMPF shows that he was considered but not selected for promotion to LTC by the active duty Fiscal Year (FY) 2007 and 2008 LTC Promotion Selection Boards.  It also shows that he was not considered continuation on active duty by the 2008 Selective Continuation Board.

14.  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.

15.  Chapter 7 contains guidance on appeals and petitions.  It states, in pertinent part, that letters of reprimand may be the subject of an appeal for transfer to the restricted portion of the OMPF.  These 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.  Appeals will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

16.  Title 10, United States Code, section 637, provides that an officer subject to discharge or retirement in accordance with section 632 of this title may, subject to the needs of the service, be continued on active duty if he is selected for continuation on active duty by a selection board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for the effective date of transfer of a GOMOR from the performance to the restricted portion of his OMPF be made retroactive has been carefully considered and found to have merit.  The evidence of record clearly shows the incident for which the GOMOR was issued was a transgression resulting from a lapse in judgment on the part of the applicant.  It also shows that he has been considered and not selected for promotion on two separate occasions in 2007 and 2008 since the approved filing of the GOMOR in 2006.

2.  By regulation, appeals related to a GOMOR can be approved based on proof that they have served their intended purpose and that the transfer would be in the best interest of the Army 1 year after they are imposed.

3.  The applicant’s evaluation history since he received the GOMOR has been outstanding.  His continued exemplary performance; selfless service to his Soldiers, unit, and the Army, which included two deployments in support of OIF; and his absolute trustworthiness, are all confirmed and attested to by senior-level Army officials, which include the CG who originally directed the GOMOR filing.  Therefore, it surely would serve the best interest of the Army to grant the requested relief in this case, which could result in the Army receiving the continued valued service of the applicant.

4.  In view of the facts of this case, it would be appropriate to correct the applicant's record to show the GOMOR in question was transferred to the restricted portion of his OMPF before he was considered for promotion to LTC by the FY 2008 LTC Promotion Selection Board.  It would also serve the interest of equity and justice to place his record before an SSB for reconsideration for promotion to LTC under the criteria of the FY 2008 LTC Promotion Selection Board.  Further, if he is selected for promotion to LTC by an SSB, the effective date of his promotion and his date of rank should be assigned as if he had been originally selected under the earlier criteria identified by the SSB, and he should be provided all back pay and allowances due as a result.

5.  The applicant is advised that because he was not granted selective continuation by the FY 2008 Board, he will not be held on active duty pending an SSB for promotion reconsideration to LTC.

BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the GOMOR in question was transferred to the restricted portion of his OMPF prior to the convening date of the FY 2008 LTC Promotion Selection Board and by placing his record before a duly constituted SSB for promotion consideration to LTC under the criteria followed by the FY 2008 LTC Promotion Selection Board.

2.  If he is selected for promotion by the SSB, his record should be corrected by establishing his LTC promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the SSB and by providing him all back pay and allowances due as a result.  If he is not selected for promotion by the SSB, he should be so notified by the appropriate Human Resources Command promotion officials.



      _________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)                                         AR20080016578



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ABCMR Record of Proceedings (cont)                                         AR20080016578



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