IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100000414 


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 permanent removal of a general officer memorandum of reprimand (GOMOR) and a relief-for-cause officer evaluation report (OER) from the performance section of his official military personnel file (OMPF) or movement to the restricted section of his OMPF.  He also requests an appointment in the U.S. Army Reserve (USAR) as a commissioned warrant officer.

2.  The applicant states that he believes it is in the best interest of the Army to remove or transfer to the restricted section of his OMPF his GOMOR and relief-for-cause OER so he can accept an aviation warrant officer appointment in the USAR.  The USAR found him technically qualified for an aviation appointment.  However, the GOMOR prevented him from being offered the appointment.  He continues his statement as follows:

	a.  In 2004, shortly after his arrival in Iraq, he lost his mentor and friend in a helicopter crash.  He states he suffers from post-traumatic stress disorder and depression due his personal experiences in Iraq.  Upon his return, he was experiencing marital problems, and frustration between him and his wife caused him to act out one night.  He regrets his action and the problems it caused his wife.

	b.  He attended anger management classes through the Army, which helped him to understand his feelings and behavior following the death of his friend.  These classes also taught him how to handle difficult situations and helped him be an effective communicator.  His counselor even wrote a letter of recommendation for his officer separation board.

	c.  He accepts full responsibility for his actions, including friendships with enlisted females.  However, he did not consider these friendships a form of fraternization.  When confronted with accusations of fraternization, he did not take them seriously, thinking they were only gossip.  At the time, he states he needed friends he could communicate with.  He contends the misleading leave form was a misunderstanding as he only listed one location on the leave form instead of two.  He felt demoralized, suffered from depression, had marital problems, and then was confronted with the charges of fraternization.  He states he did not understand the implications of his actions and it was not his intention to mislead anyone.  It was simply a mistake.

	d.  He states he is a different person and now understands that as an officer he is held to a higher standard of personal conduct.  The separation board found merit in his testimony and that of his witnesses, retaining him and recommending a transfer to another unit.  He states his appeal to the Department of the Army Suitability Evaluation Board (DASEB) was unsuccessful and he was passed over twice for promotion to chief warrant officer three.  Therefore, he was involuntarily separated from the Regular Army for failing to be promoted.

	e.  Since his separation, he completed his undergraduate degree and currently is enrolled in a graduate program.  He also received his commercial airplane pilot's license.  With his advanced education and personal development, he would like to rejoin the Army and be an active member of the USAR with an appointment as an aviation warrant officer.

3.  The applicant provides the following documentary evidence in support of his application:

	a.  a GOMOR, dated 6 October 2004;

	b.  a DA Form 67-9 (Officer Evaluation Report) with a through date of 12 August 2004;

	c.  a letter from U.S. Army Human Resources Command (HRC)-St. Louis, dated 17 September 2009, stating the applicant was technically qualified.  However, the GOMOR precluded the Aviation Proponency from supporting his return to the USAR;

	d.  three letters of recommendation from commissioned officers, dated 25 July 2009, 6 August 2009, and 11 August 2009; and

	e.  a memorandum, dated 10 August 2009, announcing a USAR unit vacancy in an aviation regiment.

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.  With prior enlisted service in the Regular Army, the applicant accepted an appointment as a warrant officer in the Aviation Corps on 23 June 2000.  His officer military occupational specialty was 153DO (UH-60 pilot).

3.  The applicant's service records show he deployed and served in Iraq from 8 March 2003 to 8 February 2004.

4.  On 10 July 2004, the applicant was involved in a domestic dispute with his wife.

5.  On 6 October 2004, the applicant received a GOMOR for:

* fraternization with enlisted female Soldiers
* submitting a misleading leave form
* committing an assault consummated by a battery
* conduct unbecoming an officer

6.  Additionally, the GOMOR stated the applicant's lack of self-control indicated a serious lack of maturity and sound judgment and was a serious breach of personal and professional misconduct.  The general officer continued, stating the applicant failed to maintain acceptable standards of conduct causing the general to question the applicant's ability to lead Soldiers and cast doubts on the applicant's fitness for continued service in the Army.  The applicant submitted a rebuttal statement to the GOMOR.

7.  After considering the applicant's rebuttal statement and recommendations from his chain of command, the general officer directed the filing of the GOMOR in the applicant's OMPF on 21 October 2004.

8.  On 4 January 2005, the applicant received a relief-for-cause OER with a through date of 12 August 2004.  His senior rater directed the relief-for-cause OER.  The applicant had performed duties as a Blackhawk helicopter pilot in the Federal Republic of Germany during this rating period.  He received a "NO" rating for the Army values of honor and integrity after his arrest on 10 July 2004 following a domestic dispute with his wife.  The rater stated the applicant lacked the discipline and potential to serve as a senior warrant officer, recommending no advanced schooling or promotion.  The intermediate rater cited the arrest and did not recommend promotion.  The senior rater stated the applicant was a tactically and technically proficient aviator.  However, the arrest and spousal abuse charges demonstrated his inability to comply with acceptable standards of conduct for officers.  The senior rater gave him a below-center-of-mass and do-not-retain comparison ranking.  He then counseled the applicant, who refused to sign the OER.

9.  On 10 January 2005, the applicant was notified by the commanding general that he was required to show cause for retention on active duty for making a false statement on a DA Form 31, for perceptions of impropriety with enlisted female Soldiers resulting in charges of adultery, and for the altercation with his wife on 10 July 2004.

10.  On 22 June 2005, a board of officers met and recommended the applicant be retained on active duty and be transferred to another unit.  The board's decision was based on the fact that the allegations were not supported by the preponderance of evidence.

11.  On 31 August 2005, the commanding general approved the findings of the separation board and elected to retain the applicant on active duty.

12.  The applicant deployed to Iraq for a second combat tour serving in-country from 19 November 2005 to 31 August 2006.

13.  After non-selection for promotion by a mandatory Department of the Army promotion board, the applicant appealed to the DASEB on 1 August 2006 requesting the GOMOR be removed or filed in the restricted section of his OMPF.  In his appeal, he stated that after a change of command, his new battalion commander and commanding general reopened the Army Regulation 
15-6 (Procedures for Investigating Officers and Boards of Officers) investigation concerning the allegations of fraternization.  With the domestic disturbance and appearance of fraternization, the commanding general initiated the investigation which led to his GOMOR.  The applicant stated in his appeal that an Army Regulation 15-6 investigation completed on 1 May 2004 had initially recommended that he receive a memorandum of reprimand.  However, the battalion commander at that time disapproved the investigator's recommendation and closed the Army Regulation 15-6 proceedings.  He states he was involved in an altercation with his wife, but he was not charged.  Therefore, he is not guilty of assault consummated by battery as the GOMOR states.

14.  On 29 November 2006, the DASEB voted to deny the removal or transfer of the applicant's GOMOR to the restricted section of his OMPF.  The DASEB did favorably vote to change the GOMOR as follows:

	a.  as reads, "You submitted a misleading leave form indicating you were going on leave to Colorado, while in truth you were visiting one of said junior female soldiers in Alaska";

	b.  to read, "You submitted a misleading leave form indicating you were going on leave to Colorado, while in truth you were in Alaska"; and

	c.  delete "In addition to violating Army Regulation 600-20, your conduct has resulted in allegations of adultery."

15.  On 29 March 2007, a Headquarters, Department of the Army, Officer Special Review Board amended the OER for the period 15 May 2004 to 12 August 2004.

16.  The applicant's OMPF does not contain a copy of this corrected OER.

17.  On 10 May 2007, the applicant was notified by his commander that he was twice non-selected for promotion by the Fiscal Years 2006 and 2007 Warrant Officer Army Competitive Category Promotion Selection Boards and, by law, he was required to be separated from active duty.

18.  Orders 206-0616 issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, ordered the applicant's discharge with severance pay from the Regular Army effective 1 November 2007.

19.  Accordingly, the applicant was honorably discharged from the Regular Army.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing his net active service for this period was 7 years, 4 months, and 9 days with 7 years, 9 months, and 5 days of prior active service.  He had no inactive service periods and his record is devoid of valorous awards for his service during combat operations in Operation Iraqi Freedom.
20.  On an unknown date, the applicant applied for an appointment as a warrant officer in the USAR.

21.  On 17 September 2009, the applicant was notified by HRC-St. Louis stating he was technically qualified for a an appointment as a warrant officer aviator in the USAR.  However, the GOMOR precluded the USAR Aviation Proponency from supporting the applicant's return to duty within the USAR.

22.  As documentary evidence in support of his application, he provided letters supporting his warrant officer appointment in the USAR as follows:

	a.  A previous company commander for the period 2002 to 2003 states the applicant was an exceptional pilot for the deputy commanding general of V Corps during Operation Iraqi Freedom.  He states he knows the applicant's shortcomings and has been professionally counseling him.  He now believes the applicant has learned from his mistakes and is ready to join the USAR as an aviation warrant officer.

	b.  A chief warrant officer three recommends the applicant for an appointment in the USAR based on the applicant's demonstrated potential as a pilot, both in peacetime and during combat operations in Iraq.  He states the applicant has a positive attitude, a thirst for knowledge, and constantly mentored personnel within their unit.

	c.  A senior officer interviewed the applicant for a position within the USAR as a medical evacuation pilot, stating the applicant was qualified for the position and exhibited the necessary qualities for an aviation warrant.

	d.  A memorandum from a USAR unit showing it had a unit vacancy for a warrant officer helicopter pilot.

23.  References:

	a.  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 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.

	b.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time and currently articulated in Army Regulation 623-3 (Evaluation Reporting System) notes that evaluation reports accepted for inclusion in the official record of an officer are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	c.  Paragraph 3-24 of Army Regulation 623-105 stated that each report will be an independent evaluation of the rated officer for a specific rating period.  It will not refer to prior or subsequent reports and will not remark on performance or incidents occurring before or after the period covered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show

* removal of a GOMOR from his OMPF or transfer to the restricted section of his OMPF
* removal of a relief-for-cause OER or transfer to the restricted section of his OMPF
* appointment as a commissioned warrant officer in the USAR

2.  In the applicant's statement to the Board, he stated he had served honorably for nearly 15 years of active service with no incidents.  Upon his return from a deployment in support of Operation Iraqi Freedom, he acknowledged that he committed the following offenses through his own actions:  fraternization with junior enlisted Soldiers, assault consummated by a battery during a domestic dispute with his wife, and conduct unbecoming an officer.

3.  The applicant's chain of command chose to use two forms of written admonishment, the GOMOR and relief-for-cause OER, to reinforce the fact that his actions and conduct were not within acceptable standards of conduct for commissioned officers.

4.  Through due process, the DASEB changed language within his GOMOR for the DASEB found that the evidence did not support select sentences within the applicant's GOMOR.  However, the DASEB did not support removing this GOMOR or transferring the GOMOR to the restricted section of his OMPF.

5.  The applicant has not provided any supporting documentation or compelling evidence to show why this Board should remove or transfer his GOMOR to the restricted section of his OMPF.  He has not provided documentary evidence to show the GOMOR was inaccurate.  Therefore, there is no reason to remove a facially valid document that accurately admonishes the applicant for his conduct.

6  In regard to the OER, HRC-Alexandria did favorably support the applicant's appeal by removing specific language from within the OER.  However, 
HRC-Alexandria did not support removing or transferring the OER to the restricted section of his OMPF.  The applicant has not provided clear and convincing evidence that is strong and compelling enough to remove the OER or to transfer it to the restricted section of his OMPF.  The burden of proof rests with the applicant.  The applicant has not met this threshold of proof with the evidence he submitted to this Board.

7.  While the Board acknowledges many service members and civilians returning from Operation Iraqi Freedom and Operation Enduring Freedom suffer from post-traumatic stress disorder which can include depression, the applicant failed to provide documentary evidence to show that he was diagnosed by competent medical personnel with this disorder or, if he had been diagnosed with post-traumatic stress disorder, it was so severe that it could mitigate his unprofessional conduct.

8.  While it is commendable that the applicant has completed his bachelor's degree, received his commercial airplane pilot's license, and is enrolled in a graduate degree, these facts do not negate the applicant's misconduct that calls into question his fitness to serve in the Armed Forces.

9.  The applicant has not provided sufficient reason or compelling evidence to support the Board directing he be appointed as a commissioned warrant officer in the USAR.  An officer is expected to be tactically and technically proficient in his or her area of concentration or military occupational specialty while simultaneously upholding the Army values with no differentiation between on and off duty status.  As such, the applicant's documented past acts of indiscretion lend credence to the decision to not grant him an officer's appointment in the USAR.



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)                                         AR20100000414



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ABCMR Record of Proceedings (cont)                                         AR20100000414



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