IN THE CASE OF:	

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20090002188 


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 an Army Review Boards Agency (ARBA) letter, dated 25 June 2007, and a Memorandum, Subject:  Action to Remove Reprimand, dated 28 November 2006 from his Official Military Personnel File (OMPF).  

2.  The applicant states, in effect, that a General Officer Memorandum of Reprimand (GOMOR), dated 3 April 2006, was removed from his record by the Department of the Army Suitability Evaluation Board (DASEB) based on a memorandum from the general officer (GO) that issued the GOMOR, dated 
28 November 2006, which retracted the GOMOR based on it being untrue and unjust in whole.  Subsequent to the removal of the GOMOR by the DASEB, the restricted portion of his OMPF still has an ARBA letter and the GO retraction memorandum that refer to the GOMOR on file and the applicant desires they be removed so that he can retire with a clean record. 

3.  The applicant provides the following documents in support of his application:  ARBA Letter, dated 25 June 2007; Army Board for Correction of Military Records (ABCMR) Application, dated 7 January 2007; GO Memorandum, Subject:  Action to Remove Reprimand, dated 28 November 2006; and DASEB Memorandum and Decision Summary, dated 15 February 2007. 



CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was originally appointed a second lieutenant in the Army National Guard (ARNG) on 26 June 1976, and continued to serve in that status until 30 June 1997, when he was discharged from the ARNG  and transferred to the United States Army Reserve (USAR), in the rank of lieutenant colonel (LTC).  

2.  On 9 August 2006, the applicant was promoted to colonel (COL), effective and with a date of rank of 17 February 2005.  

3.  On 25 August 2006, the applicant was ordered to active duty in support of Operation Noble Eagle and was assigned to Fort Hood, Texas. 

4.  On 3 April 2006, the applicant received a GOMOR and on 2 June 2006, the issuing GO directed it be filed in his OMPF.  

5.  On 28 November 2006, the GO that issued the GOMOR prepared a memorandum in which he indicated that after further investigation, he determined the reprimand pertaining to the applicant was untrue and unjust in whole and requested it be removed from the applicant's OMPF.

6.  On 5 January 2007, the applicant submitted an application to the Army Board for Correction of Military Records (ABCMR) requesting the GOMOR be removed from his OMPF, and on 25 June 2007, the ARBA Chief, Case Management Division, returned the ABCMR application to the applicant and advised him that prior to review by the ABCMR, it was necessary for him to exhaust all administrative remedies by submitting a request for removal of the GOMOR to the DASEB.  

7.  On 15 February 2007, the DASEB considered the applicant's request to have the GOMOR in question removed from his OMPF and opined that given the GO issuing the GOMORhad reconsidered his decision after finding the original action was determined to be untrue and unjust in whole, the provisions of paragraph 7-2a, Army Regulation 600-37, which states, in effect, that evidence of a clear and convincing nature showing that the document is untrue or unjust satisfies the regulatory burden of proof necessary to support removal of a document from the OMPF, was applicable in this case.  As a result, the DASEB approved the removal of the GOMOR from the applicant's OMPF.



8.  The 25 June 2007 ARBA letter along with the 28 November 2006 letter from the GO who issued the GOMOR and the 7 January 2007, application to the ABCMR submitted by the applicant, which all refer to the GOMOR, remain on file in the restricted portion of the applicant's OMPF.  

9.  Army Regulation 600-37 (Unfavorable Information) sets forth the policies and procedures for placement of unfavorable information in individual official files.  Chapter 7 contains the policies regarding appeals and petitions for removal of unfavorable information from official personnel files.  Paragraph 7-2 the policies and standards on appeals for removal of OMPF entries.  Paragraph 7-2a provides guidance on appeals for removal of OMPF entries and states, in pertinent part, that 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. 

10.  Army Regulation 600-8-104 (Military Personnel Information Management /Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  Chapter 2 contains guidance on the OMPF and 
Paragraph 2-4 identifies what agencies have the authority to direct removal of documents from the OMPF.  This list includes the ABCMR and DASEB.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that all documents on file in his OMPF that refer to the GOMOR he received should be removed was carefully considered and found to have merit.  

2.  The evidence of record confirms the DASEB directed the removal of the GOMOR received by the applicant on 3 April 2006 from his OMPF.  However, although the GOMOR was removed, an ARBA letter, ABCMR application, and a memorandum from the GO who issued the GOMOR, which all refer to the GOMOR remain filed in the restricted portion of his OMPF.  As a result, given it has been determined the GOMOR was untrue and unjust in whole and was properly removed from his OMPF, it would be appropriate and serve the interests of justice and equity to remove all documents, including those mentioned, that refer to the GOMOR from his OMPF at this time.  



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 removing all documents that refer to the 3 April 2006 General Officer Memorandum of Reprimand, to include the Army Review Boards Agency letter, dated 25 June 2007, the General Officer Memorandum, dated 28 November 2006, and the Army Board for Correction of Military Records application, dated 
7 January 2007, along with all associated documents, from his Official Military Personnel File.  

2.  This Record of Proceedings should also not be filed in his Official Military Personnel File.




      _______ _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)                                         AR20090002188



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ABCMR Record of Proceedings (cont)                                         AR20090002188



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