IN THE CASE OF:	  

		BOARD DATE:	3 December 2009

		DOCKET NUMBER:  AR20090006783 


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 transfer of a general officer memorandum of reprimand (GOMOR), dated 10 September 2006, from the performance portion of his official military personnel file (OMPF) to the restricted portion of his OMPF.  He also requests that if this action is approved, his file be reviewed by the 2009 Lieutenant Colonel Army Promotion List (APL) Board.

2.  The applicant states the decision by the Department of the Army Suitability Evaluation Board (DASEB), dated 17 October 2008, to deny his request to transfer the GOMOR, dated 10 September 2006, is an injustice to his career and military service.  He states he takes absolute and complete responsibility for his reprehensible misconduct and his medical conditions of alcoholism and depression.  He states he also takes responsibility for his significant recovery and resultant superior performance and conduct.  He states that after 8 months of treatment for alcoholism and depression and 9 months of marriage counseling he emerged a new man, husband, father, and Soldier.  He states that thanks to his participation in Alcoholics Anonymous, he has over 3 years of perfect sobriety.  He states that after 28 months of having his security clearance suspended he was able to show the strength of his recovery resulting in the full reinstatement of his clearance in July 2008.  He asks that he be judged personally and professionally using the total Soldier concept and by how he leveraged his challenges into an opportunity for change, growth, and superior performance.

3.  The applicant provides four support memoranda from his current chain of command in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a major (MAJ)/O-4 in the U.S. Army Reserve (USAR) on 6 October 2005.  He had 1 year, 7 months, and 16 days prior enlisted service in the Wisconsin Army National Guard (WIARNG).  He had 7 years, 9 months, and 14 days of prior commissioned service in the Regular Army (RA).  He had 7 years, 5 months, and 5 days prior commissioned service in the Minnesota ARNG (MIARNG).

2.  On 10 September 2006, the applicant received a GOMOR for his actions of March and May 2006, during which times he was in clear violation of probation established by the state of Minnesota following his criminal conviction for harassment/stalking in December 2005.  The GOMOR states the terms of his probation restricted him from the consumption of alcohol and required him to inform his probation officer prior to being away from home more than 3 days and to obtain permission from his probation officer before leaving the state of Minnesota.  The details of his conviction and sentence are not available for review.

3.  According to the GOMOR, the applicant had previously received a GOMOR on 9 February 2006 for the misbehavior which led to his conviction in civilian court in December 2005.  The commanding general chose at that time to give the applicant a second chance by filing that GOMOR in his local file as opposed to his permanent Army record.

4.  According to the GOMOR, dated 10 September 2006, an Army Regulation 
15-6 (Procedures for Investigating Officers and Boards of Officers) investigation found that the applicant violated his probation restrictions in both March and May of 2006, while in a military duty status, when he consumed alcohol and traveled out of state, without permission.  The investigation concluded that he engaged in conduct unbecoming an officer when he made repeated, inappropriate, and unwanted comments of a vulgar and sexual nature to, and in the presence of, other Soldiers within his command both on and off duty, while intoxicated and sober.

5.  The GOMOR states the applicant's criminal behavior and his disregard of acceptable standards of conduct was intolerable.  The GOMOR states the applicant chose to ignore the warnings given to him in his previous reprimand and openly engaged in further misconduct.  The commanding general stated he no longer had faith in the applicant's ability to conform his behavior to the high standards expected and demanded of an Army officer.  The GOMOR stated the applicant's actions were in violation of state law, the Uniform Code of Military Justice, and Army regulations and brought discredit upon himself, the Officer Corps, and the United States Army.

6.  On 29 September 2006, the commanding general directed that, after his review of the applicant's reply/rebuttal and consideration of the circumstances and alternative non-punitive measures, the letter of reprimand, without enclosures, be filed in the applicant's OMPF.

7.  The applicant's Officer Evaluation Reports (OER) for the periods 1 July 2006 to 30 June 2007, 1 July 2007 to 21 February 2008, 22 February 2008 to 28 May 2008, 29 May 2008 to 8 September 2008, and 8 September 2008 to 30 May 2009 all show that he was rated as "Outstanding Performance, Must Promote" and "Best Qualified" by both his raters and senior raters.

8.  On 25 September 2008, the applicant was ordered to active duty for a period of 400 days for mobilization in support of Operation Iraqi Freedom.

9.  On 22 July 2008, the applicant filed a request with the DASEB to move his GOMOR, dated 10 September 2006, to the restricted portion of his OMPF.  According to the DASEB Record of Proceedings a Board of Inquiry (BOI) was convened on 7 January 2007.  The BOI found there was sufficient evidence to support a finding of acts of personal misconduct (including but not limited to acts committed while in a drunken or drug intoxicated state), a special derogatory evaluation report, and conduct unbecoming an officer.  The board recommended the officer be retained in the military service and the commanding general approved their recommendation.  The findings and recommendations of the BOI were not available for review.

10.  On 9 October 2008, the DASEB denied the applicant's request to move his GOMOR to the restricted portion of his OMPF.

11.  The applicant submitted a statement, dated 5 April 2009, from his current commander, a colonel.  The commander strongly recommends that the applicant's GOMOR be moved to the restricted portion of his OMPF.  The commander states the applicant has served under his command for 9 months.  During this time the applicant has continually demonstrated his talent, integrity, and adherence to the Army values.  The commander states the applicant freely admits he has made mistakes in his life and career; however, these mistakes are clearly in the past and he has succeeded in both turning his life around and rebuilding his military career.  The commander further states the applicant has demonstrated outstanding military abilities while serving under his command in Iraq and he is clearly an outstanding officer who is providing great service and value to the Army.
12.  The applicant submitted a statement, dated 8 April 2009, from a lieutenant colonel, the Chief of Staff of the 326th Area Support Group.  The lieutenant colonel recommends the applicant's GOMOR be moved to the restricted portion of his OMPF.  The lieutenant colonel states the applicant has served on his staff for 9 months and he has proven himself to be not only an exceptional officer but a caring and dedicated leader whose tireless work ethic is unparalleled by peers and subordinates.  The lieutenant colonel states he is fully aware of the applicant's personal history and the issues that he has had in his past.  The lieutenant colonel further states the applicant has learned from his mistakes and emerged a stronger individual and he has developed a mental toughness and a physical drive that contribute to his success.

13.  The applicant submitted a statement, dated 8 April 2009, from a major, the Future Operations Officer of the 326th Area Support Group.  The major strongly recommends the applicant's GOMOR be moved to the restricted portion of his OMPF.  The major states the applicant admits his mistakes and takes responsibility for his past transgressions that are clearly in the past.  The major further states he has witnessed consistent, outstanding demonstration of the applicant's character, talent, and adherence to the Army Values.

14.  The applicant submitted a statement, dated 10 April 2009, from a lieutenant colonel, the Director of Security, Plans, and Operations of the 326th Area Support Group.  The lieutenant colonel strongly recommends the applicant's GOMOR be moved to the restricted portion of his OMPF.  The lieutenant colonel states the applicant has served under him for 2 years, during which he demonstrated exceptional talents exemplifying the core values of the United States Army.  The lieutenant colonel states the applicant is energetic, positive, ambitious, and constantly striving to achieve outstanding results in both his personnel performance and accomplishments.  The lieutenant colonel states the applicant's adverse and life changing event has made him a better person and a better officer.  The lieutenant colonel further states the applicant has performed with exceptional foresight and planning since being informed of his deployment and since his arrival in Iraq.

15.  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.  This regulation provides, 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 contends that the GOMOR that he was furnished on
10 September 2006 should be transferred from the performance portion to the restricted portion of his OMPF.

2.  The details of his civil conviction and sentence are not available for review.
The findings and recommendations of the BOI were also not available for review.

3.  According to the GOMOR issued on 10 September 2006, the applicant had previously been issued a GOMOR on 9 February 2006.  At that time the imposing authority believed the applicant still had potential as a professional Army officer and chose to give the applicant a second chance by filing that GOMOR in the local file.  The applicant violated this trust by his continued misconduct.

4.  The positive comments and strong recommendations from the officers in the applicant's current chain of command have been carefully considered.  It is also noted these recommendations are based on the applicant's performance since his deployment to Iraq.  However, admittedly, these officers have only known the applicant for a period of nine months and they were not present at the time of the incidents that resulted in the applicant receiving the GOMOR in question.  There are no comments or recommendations from the applicant's chain of command at the time of his indiscretions.  In addition, there is no evidence from the imposing authority recommending transfer of the applicant's GOMOR to the restricted portion of his OMPF.

5.  The applicant's efforts to overcome his problems are noteworthy.  However, the GOMOR is something that a promotion board should consider when comparing his records against those of his peers who do not have misconduct documented in their records.

6.  The available evidence indicates that the information contained in the GOMOR is accurate and that the GOMOR was properly imposed in compliance with applicable regulations and is properly filed in the applicant’s OMPF.

7.  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 that 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)                                         AR20090006783



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ABCMR Record of Proceedings (cont)                                         AR20090006783



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