IN THE CASE OF:	  

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080016698 


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, removal of a General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF).  If this request is denied, the applicant requests to have the GOMOR transferred from the performance portion to the restricted portion of his OMPF.

2.  The applicant states, in effect, that the GOMOR should be removed from his OMPF because it is unjust in whole.  The applicant contends that the GOMOR's presence in his OMPF prevents his ability to transfer from the retired Army Reserve to the Individual Ready Reserve (IRR) and subsequently to a Troop Program Unit (TPU) position where he intends to volunteer for active duty in the Global War on Terrorism.  The applicant believes the intended purpose of the GOMOR has been served and that its removal or transfer would be in the best interest of the Army.

3.  The applicant provides a self-authored statement, his request for removal of the GOMOR from his OMPF addressed to the Department of the Army Suitability Evaluation Board (DASEB) including 16 attachments, and a memorandum from the President of the Army Special Review Boards as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error 
or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he was a member of the United States Army Reserve assigned to the 366th Public Affairs Detachment located in Des Moines, Iowa.  The applicant is currently assigned to the Retired Reserve in the rank of master sergeant (MSG)/pay grade E-8.

3.  The performance portion of the applicant's OMPF contains a Headquarters, 89th Regional Readiness Command (RRC), Wichita, Kansas, Memorandum of Reprimand, dated 5 November 2004, and addressed to the applicant.  This memorandum was rendered by the Deputy Commanding General of the 89th RRC as an administrative memorandum of reprimand imposed under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).  The catalyst for the reprimand was the fact that on 12 October 2004, the applicant was arrested in Norwalk, Iowa, for operating a motor vehicle while intoxicated (OWI) (second offense) and for speeding (45 miles per hour in a 35 miles per hour zone).  His blood alcohol content was measured at .131 percent which was in excess of the .08 percent legal limit for the state of Iowa.  The Deputy Commanding General also noted the applicant was wearing his official military uniform at the time he was arrested.  The Deputy Commanding General informed the applicant that it was her intent to file the reprimand in his OMPF and that he had seven days from the date he received this reprimand to submit matters in rebuttal on his behalf.  The applicant acknowledged receipt of the reprimand on 18 November 2004. 

4.  366th Mobile Public Affairs Detachment, Des Moines, Iowa, memorandum, dated 7 December 2004, addressed to the Deputy Commanding General of the 89th Regional Support Command [should read RRC], Subject:  Memorandum of Rebuttal Concerning Reprimand dated 5 November 2004, shows the applicant requested a continuation on the disposition of his reprimand based on the fact that he had not been convicted of the charges and his case was still pending adjudication in a civilian court.


5.  Headquarters, 89th RRC, Wichita memorandum, dated 12 December 2004, Subject:  Memorandum of Reprimand [applicant's name and social security number], shows the Deputy Commanding General of the 89th RRC denied the applicant's request for a continuance on her decision and directed filing of the memorandum of reprimand in the performance portion of his OMPF.

6.  The applicant provides a letter from a Continuing Education Coordinator at the Des Moines Area Community College, dated 20 March 2005.  This letter was rendered to certify that the applicant had successfully completed Iowa's State mandated OWI 2 Program.

7.  Headquarters, 89th RRC, Wichita, Orders 05-117-00012, dated 27 April 2005, released the applicant from assignment to his TPU and assigned him to the Retired Reserve effective 1 May 2005.

8.  On 29 March 2006, the applicant was granted a final discharge from the probation imposed upon him for his aggravated misdemeanor charge for OWI (second offense) and his citizenship rights were restored.

9.  On 10 November 2006, the applicant sent a letter to a representative of the Career Management Office of the U.S. Army Human Resources Command located in St. Louis, Missouri.  The applicant submitted this letter as his formal request to transfer from the Retired Reserve to the IRR with subsequent enlistment in a TPU in Des Moines.

10.  The applicant provides four letters, dated from 27 November 2006 through 11 December 2006, which essentially show that he contacted a Member of the United States Senate to seek assistance with gaining approval of his request to transfer from the Retired Reserve to the IRR with subsequent enlistment in a TPU and that the Senator sent an inquiry to the Department of the Army on the applicant's behalf.

11.  The Deputy Director of the Development Directorate of U.S. Army Human Resources Command, St. Louis replied to the Senator's inquiry in a letter, dated 20 December 2006.  The Deputy Director, in effect, informed the Senator that the applicant's GOMOR dated 5 November 2004 would preclude his return to an active status.  The Deputy Director also provided a copy of the GOMOR to the Senator.  On 22 December 2006, the Senator forwarded a copy of this correspondence to the applicant.


12.  On 28 August 2008, the applicant submitted an application to the DASEB requesting removal of the GOMOR from his OMPF based upon his contention that the GOMOR was unjust in whole.  The applicant essentially contends the GOMOR is unjust for the following reasons:

	a.  The GOMOR's presence in his OMPF prevents the applicant's ability to transfer from the Retired Reserve to the IRR and subsequently to a TPU position where he intends to volunteer for active duty in the Global War on Terrorism.

	b.  Army Regulation 600-37, chapter 7 (Appeals and Petitions) provides that appeals for removal of letters of reprimand may be submitted after at least one year has elapsed since imposition of the letter and at least one evaluation report has been received in the interim.  Chapter 3 (Unfavorable Information in Official Personnel Files), paragraph 3-4(3) provides, in pertinent part, that "…a letter designated for filing in the MPRJ [Military Personnel Record Jacket] only may be filed for a period not to exceed three years…."

	c.  He was not provided legal advice or assistance in the seven day rebuttal window and his search for legal representation resulted in him not providing a written appeal within the established timeframe.

	d.  The GOMOR was given to him prematurely because it was issued prior to the civilian court adjudication.

	e.  In spite of seeking assistance from a Member of Congress, his efforts to become a member of a TPU have been stalled initially by a delay in his ability to obtain a physical examination due to a labor contract dispute and now by the presence of the GOMOR in his OMPF.

13.  On 5 September 2008, the President of the Army Special Review Boards informed the applicant that Army Regulation 600-37 precludes the DASEB from acting on appeals from Soldiers who are no longer on active duty or in an "active" status with the U.S. Army Reserve or National Guard.  The President of the Army Special Review Boards also informed the applicant that the authority to remove GOMORs from the records of retirees rests with the ABCMR and provided him an application form for completion and subsequent submission.

14.  The applicant provides a DD Form 214 for the period ending 29 March 2001 through 30 October 2001, which shows he was ordered to active duty in support of Operation Joint Forge and served for 7 months and 2 days.  This DD Form 214 also shows the applicant served in Hungary for the period 10 April 2001 through 6 October 2001, for a total of 5 months and 28 days overseas.
15.  The applicant provides a State of Iowa General Power of Attorney which shows he was designated as Attorney-in-Fact for his father effective 8 March 2004.

16.  The applicant provides a letter of support from a retired brigadier general who, in effect, states that he has known the applicant for over twenty years and commends his professionalism.  The general also notes that the applicant retired from the Retired Reserve in order to become the primary caretaker for his father. The general also expresses his disbelief that the applicant's reprimand would prevent him from serving his country again.

17.  The applicant provides a letter of support from a retired major general who, in effect, states that although he does not condone the cause for the applicant's reprimand, he hopes that it will not prevent him from once again becoming an asset to the Army Reserve and to the Army team.  The general, in effect, notes that the Army Reserve is being utilized more than ever before and could benefit from the applicant's experience.  The general concludes that he believes the needs of the Army outweigh the restrictions of the reprimand.

18.  Army Regulation 600-37, in pertinent part, provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

19.  Army Regulation 600-37 also provides that a Letter [Memorandum] of Reprimand, regardless of issuing authority, may be filed in the OMPF only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Letters [Memorandums] of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted portion of the OMPF.  Such 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.  The DASEB has been established as the appeal and petition authority for unfavorable information entered in the OMPF under this regulation.  The authority for correcting the records of retirees rests with the ABCMR.

20.  Army Regulation 600-37 further specifies 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.

21.  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 the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  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 proper authorities listed in the regulation.

22.  Section II (Transfer from Retired Reserve) of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) provides that when a retired Soldier applies for transfer to the IRR, the application will be reviewed by the appropriate representative of the Commander, Army Human Resources Command, St. Louis for final approval or disapproval.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR should either be removed from his OMPF or transferred from the performance portion to the restricted portion of his OMPF was carefully considered.

2.  The applicant's GOMOR and court documents show that this was the second time he was cited for OWI.  The applicant was provided an opportunity to seek legal counsel and rebut his reprimand; however, aside from requesting the imposing authority's decision be delayed, there is no evidence he did so.  Additionally, there is no requirement for a commander to wait for the outcome of civil court proceedings prior to rendering a written administrative reprimand.

3.  The applicant's contention that Army Regulation 600-37 stipulates that a letter designated for filing in the MPRJ only may be filed for a period not to exceed three years has no bearing on his case because the GOMOR was designated for filing in his OMPF, which has no such time constraint.

4.  The applicant has no inherent right to return to an active status.  Section II of Army Regulation 140-10 provides that when a retired Soldier applies for transfer to the IRR, the application will be reviewed by the appropriate representative of the Commander, Army Human Resources Command, St. Louis for final approval or disapproval.  The fact that the applicant's GOMOR was cited as the basis for denial of his return to active status does not imply that the GOMOR is untrue or unjust, in whole, or in part.

5.  The applicant has not provided clear and convincing evidence that the GOMOR is untrue or unjust, in whole, or in part, to support his request.  The applicant has also provided no evidence to show that the GOMOR was improper or inequitable or should now be overturned and removed.  His contentions are not supported by the evidence.

6.  In view of the circumstances in this case, the applicant is not entitled to removal of the resulting Letter of Reprimand from his OMPF.  He has not shown error, injustice, or inequity for the relief he now requests.

7.  In view of the foregoing, there is no basis for granting the applicant’s requests.

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)                                         AR20080016698



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ABCMR Record of Proceedings (cont)                                         AR20080016698



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