IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100016452 


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 his General Officer Memorandum of Reprimand (GOMOR) be removed or transferred to the restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states the following:

* He was on track to be promoted to chief warrant officer four (CW4) prior to the incident of driving while impaired (DWI), then he was passed over for chief warrant officer four (CW4), due to the GOMOR being in his OMPF
* He was notified by the Human Resources Command (HRC) he must submit his voluntary retirement or face mandatory retirement
* His performance prior to and after the above incident has been exemplary
* He completed the Army Substance Abuse Program (ASAP), a 40-hour substance abuse treatment program at the Raintree Clinic, and he has performed community service

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

* Memorandum addressed to the Army Board for Correction of Military Records 
* GOMOR, dated 29 September 2008 and supporting documents
* Memorandum Requesting that the Department of the Army Suitability Evaluation Board (DASEB) remove the GOMOR from his OMPF
* DASEB Record of Proceedings
* Memorandum for selective continuation
* Letter from a civilian physician
* Three letters from a counselor
* Outpatient Active Medication List
* Two Sleep Analysis Reports
* DA Form 638 (Recommendation for Award) of Joint Service Commendation Medal, the Award certificate, orders for the Joint Service Commendation Medal, Memorandum recommending award of the Joint Service Commendation Medal with accompanying citation
* Certificate of Training for completion of ASAP
* Letter from Raintree Clinic
* Letter from pastor
* Five letters of performance
* Fourteen letters of recommendation and support
* Two Letters of Appreciation
* Request to retire applicant at current rank and grade from a Director of Logistics
* DA Forms 67-9 (Officer Evaluation Report) covering the periods May 2000 through April 2010
* Memorandum addressed to the DASEB
* Recommendation for award of the Defense Meritorious Service Medal
* Award certificates for the Defense Meritorious Service Medal, North Atlantic Treaty Organization (NATO) Medal, Purple Heart, and Bronze Star Medal

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving on active duty in the rank of chief warrant officer three (CW3).  

2.  On 29 September 2008, the applicant received a GOMOR for DWI and refusal to complete a lawfully requested breathalyzer test on 18 August 2008.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.  

3.  The applicant acknowledged receipt of the GOMOR on 15 October 2008 and elected to submit matters on his behalf.  

4.  On 22 October 2008, the applicant submitted a rebuttal to the GOMOR and requested that it be filed in his local file rather than in his OMPF or in the alternative, the filing be delayed until the DWI matter was resolved by the courts.  The applicant made the following statements in his own behalf:
* He had honorably served in the U.S. Army proudly and with distinction since 1987 until this date
* The highest awards he had received were the Bronze Star Medal and the Purple Heart for combat actions and service to his country
* The U.S. Army is his home and all that he knows 
* He would never intentionally bring shame on his country, the Armed Forces, or on its Soldiers
* He acknowledged he understood the serious nature of the allegations and he intended to fully litigate the matters in the court system

5.  The applicant provided letters which show he completed ASAP, a substance abuse treatment program at the Raintree Clinic in November 2008, and he performed community service at his local church.  

6.  On 6 November 2008, a general officer directed the GOMOR be filed in the performance fiche of the applicant's OMPF.  The GOMOR and allied documents are filed on the applicant's performance fiche.

7.  The applicant received two center of mass OERs for the periods ending 4 April 2009 and 5 April 2010 in which he was rated as “Best Qualified” with supportive comments.  

8.  On 9 November 2009, the applicant appealed to the DASEB for removal or transfer of the GOMOR to the restricted fiche.  The DASEB denied the applicant's request on 17 December 2009.

9.  In a 20 April 2010 memorandum, the HRC-Alexandria informed the applicant that he had not been selected for promotion to the next higher grade.  Since the promotion board report was approved in April 2010, he would have to be honorably separated no later than 1 November 2010.  However, since he will have completed 20 years of active Federal service by 1 November 2010, his mandatory retirement date is established as 1 November 2010.  He was also advised that he could elect to retire voluntarily or on his mandatory retirement date.  On 28 April 2010, he elected to request voluntary retirement.  

10.  In a 30 May 2010 memorandum, the applicant outlined the procedural background of the GOMOR, the basis for his request, and his service background. 
 
11.  He provided award certificates and orders which show he was awarded the Joint Service Achievement Medal, Joint Service Commendation Medal, Defense Meritorious Service Medal, NATO Medal, Purple Heart, and Bronze Star Medal.

12.  The applicant provided letters of performance which attest to his professionalism and dedication to the performance of his duties.

13.  The applicant provided numerous letters of recommendation from military personnel.  They recommended that the applicant’s GOMOR be removed from his OMPF as the intended purpose of the GOMOR had been met and the removal is in the best interest of the Army.  These letters attest to the applicant’s character, professionalism, and leadership qualities.  

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 Army Personnel Qualification Records.  Paragraph 2-4 of this regulation 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 Army Board for Correction of Military Records (ABCMR), the DASEB, Army Appeals Board, Chief of Appeals and Corrections Branch of the U.S. Army Human Resources Command, the OMPF custodian when documents have been improperly filed, Human Resources Command, as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

15.  Army Regulation 600-37 (Unfavorable Information) states that unfavorable 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 burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a GOMOR on 29 September 2008 for DWI and refusal to complete a lawfully requested breathalyzer test on 18 August 2008.  After this incident, the applicant successfully completed substance abuse treatment programs and performed community service at his local church.  

2.  The evidence of record shows the GOMOR and allied documents are properly filed on the performance fiche of the applicant's OMPF in accordance with applicable regulations.

3.  The letters the applicant provided and the awards that he received speak highly of the applicant’s performance of duty and outstanding leadership qualities.  His OERs rendered after the issuance of the GOMOR show he has been consistently rated as “Among the Best” by his rating officials.  
4.  Further, it has been almost 2 years since the rendering of the GOMOR and the applicant has been passed over for promotion to CW4 substantiates his claim that the intent has been served.

5.  Therefore, it would be equitable to transfer the GOMOR and all allied documents to the restricted portion of the applicant's OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X ___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that the GOMOR was properly imposed and therefore removal of it from his OMPF is not warranted.  Further, the Board believed that due to the short passage of time it is not evident that the GOMOR has met its intended purpose.  Therefore, the Board determined that the evidence presented was insufficient to warrant the requested relief.



      _______ _  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)                                         AR20100016452



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ABCMR Record of Proceedings (cont)                                         AR20100016452



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