IN THE CASE OF:	 

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20100012228 


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 reconsideration of his previous requests to transfer a 10 September 2006 general officer memorandum of reprimand (GOMOR) from the performance fiche of his official military personnel file (OMPF) to the restricted fiche.

2.  The applicant states he now has new and compelling evidence which warrants additional consideration by the Board.  He states sufficient evidence now exists to show the GOMOR has served its purpose and that additional time has passed since the GOMOR's imposition.  He states the new letters of recommendation and support from his new chain of command reflect performance since the Board last reviewed his request and another rating period has concluded.  He notes his recent evaluation report reflects an additional combat deployment "above center of mass" performance.

3.  The applicant reiterates from his earlier request that he suffered from untreated alcoholism and depression at the time he received the GOMOR and that he takes full responsibility for his illnesses and action.  He states the GOMOR was a "wake-up" call for him that led to treatment and recovery.

4.  The applicant provides five new statements from members of his current U.S. Army Reserve (USAR) organization supporting his request to transfer the GOMOR in question.  He also submits a copy of his officer evaluation report for the period 31 May 2009 through 8 January 2010 which was not previously seen by the Board.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090006783 on 3 December 2009 and in Docket Number AR20090021632 on 29 December 2009.

2.  The Board previously noted the following:

	a.  On 9 February 2006 the applicant received a GOMOR for his behavior (harassment and stalking) which resulted in his conviction by a civilian court in December 2005.  This GOMOR was filed in the applicant's local personnel file.

	b.  On 10 September 2006 the applicant received a GOMOR for violating his probation based on his December 2005 civil conviction for harassment and stalking by consuming alcohol and leaving the state of Minnesota without informing his probation officer in March and May 2006.  This GOMOR was filed in the performance fiche of the applicant's OMPF.

	c.  The same general officer imposed both the 9 February 2006 and 10 September 2006 GOMOR's.

	d.  On 9 October 2008 the Department of the Army Suitability Evaluation Board denied the applicant's request to move the GOMOR to the restricted fiche of his OMPF.

3.  The 10 September 2006 GOMOR noted:

	a.  the applicant violated the provisions of his probation during military temporary duty trips to Wisconsin and Kentucky in March and May 2006.

	b.  an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation concluded the applicant 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 both on and off duty while intoxicated and while sober.

	c.  the imposing officer, a major general, stated he "believed that you still had potential as a professional Army officer and, therefore, I chose to give you a second chance" when he filed the 9 February 2006 GOMOR in the applicant's local file rather than in his permanent record.

4.  During the 3 December 2009 deliberation, the Board reviewed several memoranda supporting the applicant's request and during its 29 December 2009 deliberation considered a letter from the general officer who imposed both the February and September 2006 GOMOR's.  In that statement the imposing general officer noted the applicant's award of the Bronze Star Medal, an officer evaluation report, and the statement from the applicant's commander in Iraq and concluded, "it appears to me that the GOMOR I issued him has served its intent and recommend the Board's consideration for its removal from his OMPF."

5.  In the Board's 29 December 2009 proceedings it was concluded the GOMOR was issued as a result of a continuation of earlier misconduct and that it was something a promotion board should consider when comparing the applicant's records against those of his peers who do not have misconduct documented in their records "at least for the foreseeable future."

6.  The statements submitted by the applicant with his current request for reconsideration were authored by members of the 644th Regional Support Group, a USAR element based at Fort Snelling, Minnesota, and to which the applicant is currently assigned.  Each of the statements "strongly" recommended the 10 September 2006 GOMOR be moved to the applicant's restricted fiche.  They spoke highly of the applicant's accomplishments, his dedication, and the contributions he would continue to make to the military if promoted and/or allowed to continue to serve.

7.  The officer evaluation report submitted by the applicant in support of his current request was a 7-month relief-from-active-duty report covering the period 31 May 2009 through 8 January 2010.  The applicant was rated for his duties as the Future Operations Officer for Victory Base Complex in Baghdad.  The applicant's rater noted his performance was outstanding and he must be promoted, while his senior rater placed him among the best qualified out of 17 other officers in the rank of major for which he served as senior rater.  The report was annotated as "above center of mass."

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it states 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.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Appeals submitted under this provision will normally be returned without action unless at least 1 year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

DISCUSSION AND CONCLUSIONS:

1.  Army Regulation 600-37 provides for transferring letters of reprimand on the basis of proof their intended purpose has been served and that their transfer will be in the best interest of the Army.

2.  In the applicant's case, while he and his supporters maintain the intended purpose of the 10 September 2006 GOMOR has been served because the applicant learned from its imposition and performed admirably in subsequent years including in Iraq, the fact remains the September 2006 GOMOR resulted from the applicant not having learned his lesson after the February 2006 GOMOR.  His argument that his untreated alcoholism and depression should somehow excuse or offer an explanation for his behavior may be valid for the conduct resulting in his first GOMOR, but it is not sufficiently mitigating to excuse the continued behavior which ultimately resulted in the second GOMOR.  Relocating the September 2006 GOMOR could ultimately place the applicant on a level playing field with officers whose records have not been marred by such transgressions a single time, much less twice, and as such would not be in the best interest of the Army.

3.  There is no question the applicant and his supporters believe he should be allowed to continue to serve in an active status or even be promoted and that the only way to achieve this is through relocation of the September 2006 GOMOR.  However, retention of the GOMOR in the applicant's performance fiche provides the Army with a full picture of the applicant, including the fact he had transgressions resulting in a second GOMOR, but has since and in spite of the GOMOR continued to "Soldier on."

4.  The applicant was given a second chance when his first GOMOR was not filed in his OMPF.  The passage of time and the continued support of current and future members of the applicant's chain of command do not provide sufficient or compelling justification to relocate his September 2006 GOMOR, nor does it serve the best interest of the Army.



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 to amend the decision of the ABCMR set forth in Docket Number AR20090006783, dated 3 December 2009, and in Docket Number AR20090021632, dated 29 December 2009.



      __________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)                                         AR20100012228



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ABCMR Record of Proceedings (cont)                                         AR20100012228



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