IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090010760 


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 that the General Officer Memorandum of Reprimand (GOMOR), dated 10 October 2000; the Relief for Cause Officer Evaluation Report (OER) for the period from 15 April to 21 September 2000; and all other documents that refer to his arrest that took place during September 2000 be removed from his Official Military Personnel File (OMPF). 

2.  The applicant states that the arrest referred to on the GOMOR and the Relief for Cause OER was dismissed and legally expunged in May 2001.  Despite the court ordered expunction of the arrest, his personnel file was flagged this year by the Human Resources Command, St. Louis, Missouri, because his suitability to serve in the U.S. Army is questioned.  The applicant contends that the documents referring to the arrest mislead board members and key personnel into believing he is not deployable or suitable for continued service.  The documents also misrepresented his character and his potential during the September 2009 promotion board.  

3.  The applicant provides, in support of his application, a copy of the court ordered expunction of his arrest on 4 September 2000. 

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.  At the time of his application, the applicant was serving as a major, pay grade O-4, in the Active Guard Reserve (AGR).

3.  On 10 October 2000, the applicant received a formal, written reprimand for misconduct while serving as Commander, U. S. Army Recruiting Company.  The imposing commander stated that the preponderance of the evidence substantiated the allegations that the applicant had committed serious offenses by assaulting his wife and attempting to cover up his arrest.  The applicant was further informed that this written reprimand was imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice.  

4.  On 24 October 2000, the applicant acknowledged that he had read and understood the unfavorable information presented against him.  He stated that "not a day has gone by without me thinking about how I let down my family, the command and the Soldiers."  "The moment prior to the incident of my misbehavior, I was tracking as one of the battalion's best company commanders…"  He requested that the written reprimand not be filed in his OMPF.  The applicant's battalion commander recommended filing the reprimand in his local brigade file.

5.  On 17 November 2000, the brigade commander recommended that the reprimand be filed in the applicant’s OMPF.  On 18 December 2000, the Commanding General, U. S. Army Recruiting Command, reviewed the reprimand, concurred with the brigade commander, and directed that the GOMOR be filed in the applicant's OMPF.

6.  On 1 November 2002, the applicant appealed, in two separate requests, to the Department of the Army Suitability Evaluation Board (DASEB) for relief, requesting that the GOMOR and Relief for Cause OER be removed from his OMPF.  The applicant provided a copy of the court ordered expunction of the arrest record and a letter from his civilian counsel explaining the court's action.  

   a.  On 10 January 2003, the DASEB denied the appeal to remove the GOMOR.

   b.  On 7 March 2003, the DASEB determined that the evidence submitted by the applicant did not justify altering or withdrawing the subject OER from his OMPF.  The DASEB denied his appeal to remove the OER. 
   
   c.  On 3 April 2003, the applicant's request to remove the GOMOR was submitted for reconsideration based on the court ordered expunction of the arrest record.  On 13 August 2003, the DASEB again denied the appeal to remove the GOMOR.

7.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part that administrative letters of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The letter must be referred to the recipient and the referral must include and list applicable portions of investigations, reports or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.  Letters of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer level authority and are to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached.  Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7.  Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to the DASEB to relocate a reprimand, admonition or censure (normally for Soldiers in pay grade E-6 and above) are based on proof that the intended purpose has been served and that transfer to the restricted section would be in the best interest of the Army.  The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed.  If the appeal is denied the DASEB letter of denial will be filed in the performance section, the appeal itself and any associated documents will be filed in the restricted section.  Otherwise this Board may act in accordance with Army Regulation 15-185 and the Soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.

8.  Army Regulation 623-105 (Officer Evaluations) as in effect at the time, established the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provided that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, was presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph  9-7 of that regulation stated that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent error or inaccuracy is warranted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that since the court ordered all records of his arrest to be expunged, his GOMOR and Relief for Cause OER should be removed from his OMPF. 

2.  The applicant’s records clearly show that the applicant received a GOMOR for misconduct and that it was filed in his OMPF.

3.  The evidence shows that the applicant acknowledged that he had read and understood the unfavorable information presented against him.  Furthermore, the applicant admitted to misbehaving.  Subsequently, the GOMOR was referred by a general officer for filing in the applicant’s OMPF.

4.  The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of the applicant’s OMPF.  There is no evidence of any violation of any of the applicant’s rights.

5.  The applicant has not provided sufficient evidence or argument to form a basis for removing the GOMOR from his OMPF or for moving it to the restricted portion of his OMPF. 

6.  The available evidence shows that the DASEB considered and denied the applicant's request for removal of the subject OER.  The applicant has not provided any new evidence or argument for this Board to consider.  

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

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)                                         AR20090010760





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010760



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1