IN THE CASE OF:	

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100015360 


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 general officer memorandum of reprimand (GOMOR), dated 10 February 2006, be removed/expunged from his official military personnel file (OMPF).

2.  He states the imposing commanding general (CG) previously requested its removal from his OMPF and the request was approved by the Department of the Army Suitability Evaluation Board (DASEB); however, the action has not been completed.  The GOMOR was moved to his restricted fiche when the imposing commanding general's request was that the GOMOR be expunged permanently from his OMPF.

3.  He provides:

* GOMOR
* GOMOR appeal packet
* imposing commanding general's request supporting the GOMOR's removal from OMPF
* DASEB memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed as a second lieutenant in the U.S. Army Reserve on 6 June 1992.

2.  On 10 February 2006 while serving in the rank of major, he was issued a GOMOR for driving under the influence (DUI) of alcohol.  He was advised of his commanding general's intent to file the GOMOR in his OMPF.

3.  On 1 March 2006 and 3 March 2006, respectively, the applicant and his counsel requested the GOMOR be filed in his local file or his restricted section in the alternative.  Counsel stated the applicant's conviction would be for reckless driving, not DUI, and that combined with the applicant's stellar past service, suggested that filing the GOMOR in his local file or restricted file best served the interests of fairness.  Five letters of support were submitted on his behalf with the request.

4.  On 3 April 2006, the applicant's headquarters company commander recommended the GOMOR be filed in his OMPF with a review in 1 year.  On 4 April 2006, his battalion commander recommended its permanent filing in the restricted fiche.  On 20 April 2006, his headquarters commander recommended the GOMOR be filed in his OMPF due to the severity of the offense.  He also recommended a review in 1 year with the possibility of moving the GOMOR to the restricted fiche.

5.  On 2 May 2006, the applicant's imposing CG approved the permanent filing of the GOMOR in his OMPF with review of the decision in 1 year following a request from the applicant and letters on his behalf from his new chain of command.

6.  On 10 May 2006, he acknowledged receipt of the imposing CG's decision to file the GOMOR in his OMPF.

7.  On 28 November 2007, he petitioned the DASEB for removal of the GOMOR from his OMPF.  He stated he had been found guilty of reckless driving and not DUI.  He also stated that while that was still inappropriate behavior, he learned from that experience and realized how a single lapse in judgment could and had hurt his family and his career.

8.  In a memorandum, dated 11 October 2007, the imposing CG stated he supported removal of the GOMOR he imposed against the applicant from the applicant's OMPF.  He stated that when he imposed the GOMOR, he annotated the action with a personal note indicating his intention to review the filing determination after 1 year.  Upon the applicant's request and reviewing his file, the applicant's performance over the past year, as well as the strong endorsement of his chain of command, he was confident the applicant had learned from his mistake and understood the seriousness of his conduct.  He further stated the GOMOR has served its purpose and he recommended its expeditious removal from the applicant's OMPF.  Except for that one incident, the applicant's career in the Army had been exemplary.  The applicant served his country honorably for 13 years and made numerous enduring contributions to the Army and the country.  The constructive impact of the GOMOR and its intended effect was reflected in the applicant's outstanding performance during Operation Iraqi Freedom, his award of the Bronze Star Medal, and his projected assignment as the Cavalry Division's Transportation Officer.  Therefore, he recommended approval of the applicant's petition.

9.  On 27 February 2008, after careful consideration of all the facts and evidence, the DASEB granted approval and the transfer of the GOMOR and all related documents, in that the intended purpose had been served.  Accordingly, the DASEB directed the GOMOR be transferred from the performance section of the applicant's OMPF to the restricted section.

10.  The applicant was promoted to the rank of lieutenant colonel on 1 October 2010.

11.  Army Regulation 600-37 (Unfavorable Information) prescribes the policy for authorized placement of unfavorable information about Army members in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

12.  Army Regulation 600-37 specifies 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.

13.  Army Regulation 600-37 also specifies that a letter of reprimand or GOMOR, regardless of issuing authority, may be filed in the OMPF only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Letters (memoranda) of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  Such 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.  The DASEB has been established as the appeal and petition authority for unfavorable information entered in the OMPF under this regulation.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the GOMOR, dated 10 February 2006, from his OMPF was carefully considered and was found to have merit.

2.  The evidence shows he was administered a GOMOR for DUI and was provided the opportunity to rebut his reprimand and he did so.  After consideration of the supporting documentation, the applicant's rebuttal, and the filing recommendation of the chain of command, the imposing GO approved the permanent filing of the GOMOR in the applicant's OMPF on 2 May 2006 with a stipulation that his decision would be reviewed within 1 year.  However, such a stipulation is not provided for in the governing regulation.

3.  The GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  Since receipt of the GOMOR, he has revealed nothing but a progressively noteworthy advancement, both in achievements and maturity.  It is evident that after his mistake, the imposing GO monitored the applicant's performance/progress subsequent to imposing the GOMOR and supported its removal from his OMPF.  During this period, the applicant's performance had been outstanding and he and his chain of command believed he had learned from his mistake and understood the seriousness of his conduct. 
Furthermore, he had served honorably in combat, was awarded the Bronze Star Medal, and was promoted to a higher grade.  The GOMOR appears to have served its intended purpose, and the DASEB transferred it to his restricted fiche accordingly.

4.  However, there is insufficient evidence to show the GOMOR was improperly imposed in the first place.  Therefore, removal/expungement from his OMPF is not appropriate.


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)                                         AR20100015360



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ABCMR Record of Proceedings (cont)                                         AR20100015360



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