IN THE CASE OF:	  

		BOARD DATE:	       19 MARCH 2009

		DOCKET NUMBER:  AR20090000899 


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 a 23 November 2005 General Officer Memorandum of Reprimand (GOMOR) be transferred from the performance portion of his Official Military Personnel File (OMPF) to his restricted file.

2.  The applicant states that this was the first offense of any nature in his more than 24 years of Army service.  He notes that he has risen to the top of his field as evidenced by his senior rank of Chief Warrant Officer Five (CW5) and his sustained superior performance over lengthy periods of service.  He states he was awarded a Legion of Merit after the GOMOR was already in his file and that up until this incident he had an excellent record.  He states he would like to retire on the excellent record.

3.  The applicant also states, in effect, that during the period in question he endured horrendous physical and emotional stressors as a forward representative of the US Army Human Resources Command (HRC) at Fort Polk, Louisiana following Hurricane Katrina.  He states the extreme level of human suffering got to him.  He states “the pain I felt manifested itself one night in a charge of Driving under the Influence (DUI).”  He states because of the stress and long workdays, the State of Louisiana dismissed the charge and expunged his driving record.

4.  The applicant states that in addition to being admonished about the DUI charge which the State of Louisiana dismissed, the GOMOR also notes he used undue influence to have a Soldier in his branch at HRC reassigned against her wishes.  The applicant states this is a false accusation and that he was ordered to reassign the officer because of her disruptive behavior and unprofessional conduct.  He states he spoke with the officer and she “happily agreed to reassignment” until she learned her new unit would be deploying.  It was only then that she began to complain about being moved against her will.  The applicant notes that this issue was addressed in an earlier local reprimand which the imposing authority specifically stated would not become part of his OMPF.

5.  The applicant states a third issue in the GOMOR alleged that he lied to his superiors, and further identifies that he (the applicant) lied to one particular officer who was the acting Chief of Staff for the Katrina mission.  The applicant argues that the officer’s statements were retaliation for his helping Soldiers who were not initially entitled to certain benefits available to other Soldiers in the same situation.  The applicant states he was administering those benefits on verbal authorization from the National Guard Bureau.  He states in spite of subsequently receiving official authorization to administer those benefits the officer told him he “would find some means to get back at me for this issue.”  

6.  The applicant provides a copy of the GOMOR in question, documents associated with his driving while intoxicated (DWI) arrest, copies of evaluation reports and military award documents from his OMPF, and a copy of the Department of the Army Suitability Evaluation Board (DASEB) decision.

CONSIDERATION OF EVIDENCE:

1.  The available evidence indicates the applicant has been affiliated with the United States Army since 1974 with the exception of a brief break in service in 1981.  In 1982 he was appointed as a warrant officer and has been on active duty under the Active Guard Reserve (AGR) program since 1988.  In 1985 he was notified that he was eligible to receive retired pay at age 60.  He was promoted to the rank of CW5 in October 2000.

2.  A Fort Polk, Louisiana Military Police Desk Blotter reported that on 5 October 2005 the PMO (Provost Marshal Office) was notified that the applicant had been arrested and transported to the Leesville Police Department following a traffic stop.  He rendered a valid breath sample of .167 percent blood alcohol content (BAC), was further processed, and then released on his own recognizance.

3.  A 5 October 2005 sworn statement by Lieutenant Colonel (LTC) RJH, Headquarters, US Army Reserve Command, Fort McPherson, indicated that when the applicant failed to arrive for a benefits briefing, he contacted the applicant who stated he was “not feeling well” and asked if another officer could take the briefing.  When LTC RJH asked if the applicant was OK or if he needed someone to take him to sick call, the applicant responded “No, I’ll be ok.”
4.  A 6 October 2005 sworn statement from Colonel (COL) RTH noted he had contacted the applicant on 5 October and asked him (the applicant) what had happened the previous night, the applicant responded by asking “what do you mean?”  Ultimately COL RTH noted the applicant told him he had received a ticket for running a red light, that he had not been arrested and when asked if he had taken a field sobriety test responded that he had but “when he explained to the officer that he taken some sleep medication the officer gave him a ticket and let him go.”  Later in the day COL RTH noted he went to see the applicant who initially confirmed he had been arrested but that he had not been drinking.  Subsequently, during their conversation the applicant admitted to having had three or four beers in a 60 to 90 minute time frame and he should not have been behind the wheel of the car after having consumed alcohol.

5.  On 23 November 2005, the Commanding General, US Army Military District of Washington issued the applicant a GOMOR for misconduct.  The GOMOR noted that on 5 October 2005 the applicant was driving while intoxicated in Leesville, Louisiana while deployed in support of Task Force Katrina.  The reprimand indicated the applicant’s intoxication caused him to run a red light, that tests later showed his blood alcohol content was .167, over two times the legal limit, and that he was unfit to conduct his duties the following day.  It stated when asked about the events of the night before, he provided a false statement to the Chief of Staff, stating the local police did not arrest him, when in fact he had been arrested, transported to jail and pled guilty to the offense of drunk driving.  In a 
17 October 2005 email, the GOMOR noted the applicant lied to two superior officers about the circumstances surrounding his conviction of the offenses by stating that the State of Louisiana said they were mistaken and that they were sorry for the inconvenience.  The GOMOR went on to note the applicant’s misconduct was compounded by an earlier GOMOR he had received for attempting to reassign an officer in retaliation for allegations she made against him.

6.  Included with the November 2005 GOMOR, which is filed in the applicant’s OMPF, was a 7 June 2005 memorandum reprimanding the applicant for misconduct involving his attempt to place another warrant officer on orders after she had been assigned to HRC for only 4 months.  The reprimand also noted that between 21 September 2004 and 19 February 2005 the applicant made an inordinate number of telephone calls to another female warrant officer using his government issued cell phone.  The reprimand noted that even though this female warrant officer was a section leader in the applicant’s division, the number of calls the applicant made to her exceeded by eight times the number of calls 


made to two other section leaders during this same period.  The basis for the reprimand was substantiated findings of misconduct by an approved Army Regulation 15-6 investigation.  On 21 June 2005 the imposing authority elected to file the MOR in the applicant’s Military Personnel File for a period of 3 years or until he was reassigned to another General Court-Martial jurisdiction, whichever occurred first, rather than recommend to the commanding general that the reprimand be filed in his OMPF.

7.  On 5 December 2005, the applicant acknowledged receipt of the reprimand and indicated he would submit a statement in his own behalf.  In the applicant’s 
5 December 2005 response to the GOMOR he stated that he freely admitted his judgmental error that resulted in his arrest for driving under the influence in Leesville, Louisiana.  He indicated that he was operating under the most severe professional distress and that the devastation and seemingly hopeless situations of the Soldiers impacted by “the largest natural disaster in our country’s history” seriously affected him “more so than any other military experience in 34 years of honorable service to the Nation.”  He stated that he was “personally embarrassed, physically sick, and professionally disoriented” the day after his arrest.  He indicated that as clarity returned to him he fully reported all concerns to his chain of command.  He states that he completed the requirements imposed by the City of Leesville, Louisiana and all charges were dismissed on 12 October 2005.  He states he “accurately condensed the court’s discussion including the eloquent tone and verbiage of southern hospitality” accorded him, in his e-mail to members of his chain of command.  He stated he never intentionally misrepresented any situation nor shirked any responsibilities during his military career.  

8.  The e-mail referenced by the applicant in his response to the GOMOR was included as part of the documents filed with the November 2005 GOMOR in the applicant’s OMPF.  The e-mail, authored by the applicant and dated 17 October 2005, contained the following statement:

Also all charges reference the DWI in Louisiana have been dismissed so I have no DWI on my record, the State of Louisiana said they were mistaken and that I was free to go and they were sorry for the inconvenience.  I just do not believe that someone would try to use something that happened in my personal life that was dismissed, against me and said that I was unable to do my job as a professional Soldier.  I have been at HRC for 5 years and NEVER have let the Army down on anything so why would you try to do this to me now?



9.  A Memorandum for Record, also contained in documents filed with the GOMOR, notes that the charges against the applicant were dismissed on 
12 October 2005 after the applicant successfully completed a seven day period of probation.  The 12 October 2005 court order notes the applicant was “charged on 5 October 2005 with DWI and has successfully completed his probationary period and has been convicted of no other offense during said period and no criminal charges is (sic) presently pending against said Defendant:  it is ordered that this conviction of DWI be set aside and the prosecution is hereby dismissed.  This dismissal shall have the same effect as an acquittal.”

10.  Members of the applicant’s chain of command all recommended the 
23 November 2005 GOMOR be filed in the applicant’s OMPF.  Two letters of support, outlining the applicant’s contributions and accomplishments, accompanied the GOMOR to the imposing authority for review as part of his filing determination.

11.  On 22 December 2005 the imposing authority directed the GOMOR and all enclosures to the action, be filed in the applicant OMPF, including the June 2005 memorandum of reprimand.

12.  The applicant’s file contains Officer Evaluation Reports (OERs) for the periods 2 December 2003 through 13 July 2004, 1 February 2005 through        30 June 2005, 1 July 2006 through 14 January 2007, and 15 January 2007 through 14 January 2008.  There is no OER in the applicant’s OMPF covering the period during which he received the November 2005 GOMOR or when he was arrested for DWI.

13.  The OERs ending in January 2007 and January 2008 are both exceptional evaluation reports, as are every other evaluation report in the applicant’s file.  In May 2006 the applicant was awarded a Meritorious Service Medal (6th Award) for his meritorious achievement during the period 1 June 2004 to 31 May 2006.  In January 2008 he was awarded a Legion of Merit for exceptionally meritorious service throughout a distinguished career in various positions of increasing responsibility between 1 February 1998 and 14 January 2007.

14.  In August 2007 the DASEB denied the applicant’s petition to transfer the November 2005 GOMOR to the restricted portion of his OMPF.

15.  As of 8 April 2008 the applicant was ordered to active duty in an AGR status with the Arizona Army National Guard for the period 1 March 2008 to 14 January 2010.

16.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part, that administrative reprimands 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.  A reprimand 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.  A 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.  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.  Reprimands filed in the Military Personnel Records Jacket (MPRJ) may be retained for no more than 3 years and must state the length of time they are to be retained.  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 to be based on proof that the intended purpose has been served and that transfer to a restricted fiche 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.

DISCUSSION AND CONCLUSIONS:

1.  The November 2005 GOMOR reprimanded the applicant for DWI and for providing false statements to a member of his chain of command regarding his arrest.  While that same GOMOR referenced an earlier reprimand for attempting to reassign another warrant officer, the GOMOR in question made no mention of inappropriate administration of programs to unauthorized Soldiers during the Katrina Hurricane mission.

2.  The available evidence suggests the GOMOR resulting from the applicant’s DWI and subsequent actions was warranted.  While the applicant argues 


otherwise, he has not provided any substantiating evidence which confirms his arguments.  The issuance of the GOMOR was accomplished in accordance with regulation and was appropriate for the situation.  

3.  Although the applicant does not argue that transfer of the GOMOR to the restricted portion of his OMPF is appropriate because the intent of the GOMOR has been served, the available evidence would support such an argument.  The 
GOMOR was issued more than 3 years ago and the appellant's performance prior to and following receipt of the GOMOR were exceptional.  It was also considered that the appellant fulfilled the requirement of the court and was, in effect, “acquitted” of the DWI charge.  Additionally, it was taken into consideration that inclusion of the June 2005 memorandum of reprimand as part of the 
23 November 2005 GOMOR which is filed in the applicant’s OMPF creates an injustice the imposing officer of the June 2005 reprimand did not intend.  It was his intent that the June 2005 reprimand be filed locally and not in the applicant’s OMPF.

4.  The available evidence indicates the applicant has continued to "Soldier on" in spite of the GOMOR as recognized by his exceptional performance evaluation reports and award of the Meritorious Service Medal and Legion of Merit.  All of these items are indicators the intent of the GOMOR has been served and as such, in the interested of justice and equity, transfer is appropriate and warranted.

5.  In accordance with Army Regulation 600-37, it would be appropriate and in the best interest of the Army to transfer the GOMOR and all associated documents to the applicant's restricted file.  

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 transferring the 23 November 2005 GOMOR and all associated documents currently in the performance portion of the applicant’s OMPF to the restricted portion of his OMPF.



      _______ _ XXX  _______   ___
               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)                                         AR20090000899



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ABCMR Record of Proceedings (cont)                                         AR20090000899



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