IN THE CASE OF:	

		BOARD DATE:	25 June 2009 

		DOCKET NUMBER:  AR20090010387 


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, 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 to the date the imposing Commanding General (CG) support memorandum was signed (21 January 2009), and his file be allowed to go before a special selection board (SSB) for consideration for selection to major.

2.  The applicant states that the fact the Department of the Army Suitability Evaluation Board (DASEB) was willing to move his GOMOR and allow him to compete with his peers signals that he has taken the necessary steps to become a better and more complete officer and he should be retained on active duty with the ability to compete with the current group of year group 1999 Captains in an SSB.

3.  The applicant provides a support memorandum from the CG who imposed the GOMOR, dated 21 January 2009; a chain of command support memorandum, dated 16 November 2008; his letter to the DASEB requesting transfer of his GOMOR from his performance to the restricted portion of his OMPF; and his Officer Evaluation Report (OER) for the period 2 June 2008 through 1 June 2009 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was appointed a second lieutenant in the United States Army Reserve and entered active duty on 2 May 1999.  He has continued to serve on active duty since that time and was promoted to captain on 1 October 2002.

2.  On 6 July 2007, while the applicant was serving on active duty, the Commander, United States Army Accessions Command, Fort Monroe, Virginia issued the applicant a GOMOR and directed the GOMOR be filed in the performance portion of the applicant's OMPF.

3.  On 8 November 2008, the applicant petitioned the DASEB requesting that the GOMOR be transferred from the performance to the restricted portion of his OMPF.

4.  On 5 February 2009, the DASEB denied the applicant's appeal by indicating that there was insufficient evidence that the intended purpose of the GOMOR had been served.

5.  On 13 January 2009, the applicant again petitioned the DASEB for transfer of the GOMOR 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 he supported the transfer of the GOMOR to the restricted portion of the OMPF because it had served its intended purpose.

6.  On 18 May 2009, the DASEB approved the transfer of the GOMOR from the performance to the restricted portion of the applicant's OMPF.  The DASEB indicated the transfer action was not to be considered retroactive and, therefore, did not constitute grounds for promotion reconsideration if previously non-selected.

7.  The applicant's OMPF contains three OERs which cover periods which end on 14 December 2007, 1 June 2008, and 1 June 2009 which he has received since the filing of the GOMOR.  The first report evaluated the applicant as an Executive Officer of the Deputy Chief of Staff, G-2, Headquarters, Training and Doctrine Command, Fort Monroe, Virginia.  The last two evaluated the applicant as the Battalion Adjutant (S1) of a continental United States (CONUS)-based Combined Arms Battalion in the 1st Cavalry Division.  All three of these reports had highly favorable comments with the box titled "outstanding performance, must promote" checked.  The reports contained rater and senior rater recommendations that the applicant be promoted to major at the soonest opportunity.

8.  The applicant submits a memorandum from the CG who directed the filing of the GOMOR.  He requested the transfer of the applicant's GOMOR to the restricted portion of the OMPF on the grounds that the reprimand has served its intended purpose and transfer is in the best interest of the Army.

9.  The applicant also provides a supporting memorandum from a recent brigade commander who states he believes the applicant has been rehabilitated and should be promoted to major and continue to serve in the Army.  The brigade commander indicated that the applicant performed admirably during the past 11 months while assigned to the brigade.  He stated that the applicant worked very hard to mentor and coach a junior S1 section and battalion staff.

10.  In the processing of the case, the Board staff contacted an official from Officer Promotions at the U. S. Army Human Resources Command.  The official verified the applicant was considered but not selected for promotion to major by the active duty Fiscal Year (FY) 2008 and 2009 Major Promotion Selection Boards and that he was not selected for continuation on active duty by the 2009 Selective Continuation Board.

11.  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.

12.  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 one year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

13.  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.

2.  By regulation, appeals related to a GOMOR can be approved based on testimony that they have served their intended purpose and that the transfer would be in the best interest of the Army not sooner than one year after they are imposed.  Support memoranda from the CG who directed the filing of the GOMOR and other senior-level Army officers in the applicant's chain of command indicate the reason for which the reprimand was issued has served its intended purpose and transfer is in the best interest of the Army.

3.  The applicant's evaluation history since he received the GOMOR has been outstanding.  Since the reprimand was issued, he has served in an exemplary fashion in the Training and Doctrine Command G-2 and as a battalion adjutant.  He was instrumental in the dramatic improvement in production while in the S1 section.  His dedication to mission above self; dedication to the betterment of all Soldiers and their families; exceptional leadership, performance, and contributions in support of Operation Iraqi Freedom; and his high standard of conduct, 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, as shown below, which could result in the applicant being given the opportunity to compete with his peers for promotion without a GOMOR in his records.

4.  In view of the facts of this case, it would be appropriate to correct the applicant's record to show the GOMOR was transferred to the restricted portion of his OMPF before he was considered for promotion to major by the FY 2009 Major Promotion Selection Board.  Specifying an actual date of transfer could hinder the applicant's chance at promotion reconsideration.  It would also serve the interest of equity and justice to place his record before an SSB for reconsideration for promotion to major under the criteria of the FY 2009 Major Promotion Selection Board with his GOMOR placed in the restricted portion of his OMPF.  Further, if he is selected for promotion to major 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 2009 Board, he will not be held on active duty pending an SSB for promotion reconsideration to major.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ___x___  ___x__       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 partial 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 2009 Major Promotion Selection Board and by placing his record before a duly constituted SSB for promotion consideration to major under the criteria followed by the FY 2009 Major Promotion Selection Board.

2.  If he is selected for promotion by the SSB, his record should be corrected by establishing his major 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.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to transfer of the GOMOR in question retroactive to the date the imposing Commanding General support memorandum was signed (21 January 2009) and removal of the GOMOR.  




      _______ _   _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)                                         AR20090010387



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ABCMR Record of Proceedings (cont)                                         AR20090010387



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