IN THE CASE OF:	  

		BOARD DATE:	    10 May 2011

		DOCKET NUMBER:  AR20100018298 


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 removal of the following documents from his Official Military Personnel File (OMPF):

* General Officer Memorandum of Reprimand (GOMOR), dated 9 March 2009 with allied documents
* Department of the Army Suitability Evaluation Board (DASEB) denial of removal of the GOMOR 

2.  He states:

* He was found innocent of all charges related to his case
* The general officer who placed the GOMOR in his OMPF recommended immediate removal of the GOMOR from his OMPF
* The DASEB misinterpreted the evidence in his case 

3.  He provides a copy of his DASEB Record of Proceedings and his official court transcript.  

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 9 March 2009, the applicant received a GOMOR for physically assaulting and pointing a loaded weapon at Ms. C------ S--------.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.  

3.  On 10 March 2009, he acknowledged receipt of the GOMOR and elected to submit matters on his behalf.  

4.  A letter, dated 25 March 2009, shows the applicant's civilian attorney indicated on 19 February 2009 the applicant was convicted of domestic violence in the third degree, but his appeal was ongoing.  

5.  On 27 March 2009, he submitted a rebuttal to the GOMOR and requested that it be reviewed and considered before a final determination was made regarding filing of this administrative reprimand in accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 3-4b(1)(b).  He indicated that the applicant had been in the military 14 years and he had never been accused of domestic abuse until this incident.  He also expressed his perception of the events that occurred on 13 January 2009.  

6.  The applicant provided letters of support from active and retired military personnel who attested to his character and professionalism and recommended that he not be administered a GOMOR.  

7.  On 30 March 2009, his chain of command recommended that the GOMOR be filed in his local unit file.  

8.  On 2 April 2009, the imposing authority directed that the GOMOR be filed in the applicant's OMPF in accordance with Army Regulation 600-37, paragraph 
3-4b.  The GOMOR and allied documents are filed in the performance portion of his OMPF.  

9.  On 16 December 2009, he was found not guilty of the offense of assault in the third degree in the Circuit Court of Coffee County, Alabama.

10.  On 5 January 2010, he submitted a request to the GOMOR imposing authority to reconsider his original decision and remove the GOMOR from his OMPF.   

11.  On 5 January 2010, the applicant appealed to the DASEB for removal of the GOMOR from his OMPF and his request was denied.  The DASEB Record of Proceedings and allied documents are filed in the restricted portion of his OMPF.  

12.  On 7 January 2010, the applicant's company commander recommended that the GOMOR be withdrawn, but his battalion and brigade commanders recommended that it be filed in the applicant’s local unit file.  

13.  On 11 January 2010, in a letter, the GOMOR imposing authority informed the DASEB that his decision to initiate and file the GOMOR in the applicant’s OMPF was not based on the civil conviction that was imposed by the Municipal Court of Enterprise, AL on 19 February 2009.  The GOMOR imposing authority stated he was fully aware the applicant’s case was under appeal at the 12th Judicial Circuit Court in Alabama.  The GOMOR imposing authority also recommended that the GOMOR be removed from the applicant’s OMPF.  

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, in pertinent part, that unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.  Additionally, the regulation states that the DASEB can revise, alter, or remove from the OMPF unfavorable information that is determined upon appeal to be unjust or untrue, in part or in whole.  The board can transfer from the performance to the restricted portion of the OMPF those administrative letters of reprimand, admonition, or censure that are determined upon appeal to have served their intended purpose, when such transfer would be in the best interest of the Army.   




DISCUSSION AND CONCLUSIONS:

1.  The applicant received a GOMOR on 9 March 2009 for physically assaulting and pointing a loaded weapon at Ms. C------ S--------.  

2.  The evidence of record shows the GOMOR and allied documents are properly filed on the performance portion of his OMPF in accordance with applicable regulations.

3.  On 16 December 2009, he was found not guilty to the charge of assault in the third degree in the Circuit Court of Coffee County, Alabama.  

4.  The GOMOR was properly imposed against the applicant; therefore, it is believed that due to the short period of time that has passed it is not evident that the GOMOR has met its intended purpose.  The evidence presented was insufficient to warrant the request for removal or of the transfer of the GOMOR to the restricted portion of the OMPF.  

5.  The applicant’s attempt to equate a not guilty finding with a finding of innocence is flawed.  The new finding means only that the jury was not convinced of his guilty beyond a reasonable doubt while the standard of proof regarding the GOMOR was simply that it was more likely than not that he committed the conduct referenced in the GOMOR.  He was afforded all required due process under the relevant regulation.  

6.  The available evidence shows the applicant applied to the DASEB for removal of the GOMOR and his request was denied.  The DASEB Record of Proceedings and allied documents were filed in the restricted portion of his OMPF.  His service record is void of evidence and he has not provided compelling evidence to indicate these documents were improperly filed.  Therefore, there is no basis for granting his request.  

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)                                         AR20100018298



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ABCMR Record of Proceedings (cont)                                         AR20100018298



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