IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100030178 


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 a general officer memorandum of reprimand (GOMOR), dated 28 August 1996, from the restricted portion of his official military personnel file (OMPF).  He also requests the Department of the Army Suitability Evaluation Board (DASEB) letter, dated 22 March 2001, be removed from the restricted portion of his officer OMPF and enlisted OMPF.

2.  The applicant states the GOMOR has been in the restricted portion of his OMPF for over 14 years.  On 22 March 2001, the DASEB directed the transfer of his GOMOR from the performance to the restricted portion of his OMPF.  He states the DASEB decision was based on the premise that the intent of the GOMOR had been served.  The applicant continued by stating the intent of the GOMOR had served its purpose and it now should be permanently removed from his OMPF.  

3.  The applicant provides a copy of the aforementioned GOMOR and DASEB documents in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 June 1991 and consecutively reenlisted.  He completed his initial entry training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  Additionally, he was awarded MOS 18E (Special Forces Communications Specialist).  He currently serves on active duty and was appointed as a Reserve warrant of the Army for an indefinite term on 2 October 2003.
2.  On 9 September 1996, the applicant received a GOMOR, dated 28 August 1996, for driving under the influence of alcohol as determined by a properly conducted test.  The GOMOR states it was imposed as an administrative measure and not under the provisions of Article 15, Uniform Code of Military Justice.  The general officer stated that the GOMOR could be filed in the applicant's OMPF.  The applicant was advised he had the right to submit matters in defense, rebuttal, extenuation and mitigation within 72 hours after receipt of the GOMOR. 

3.  On 11 September 1996, the applicant acknowledged receipt of the GOMOR and provided a rebuttal statement to the general officer who administered the GOMOR.  In his rebuttal statement, he acknowledged receipt of a citation for driving under the influence on 26 August 1996 and stated his court date in a U.S. District Court was set for 27 September 1996.  He stated the GOMOR was issued prematurely and unfairly based on an unfounded allegation found in a blotter report for he had not yet been convicted in a civil court.  He requested the general officer hold his GOMOR in abeyance and not file it in his OMPF, local or permanent, until he had been heard in a court of law. 

4.  On 23 October 1996, the commanding general directed that, after his review of the applicant's rebuttal, the written reprimand be filed in the applicant's permanent portion of his OMPF.

5.  On 19 January 2001, the applicant filed a request with the DASEB to move his GOMOR, received on 9 September 1996, to the restricted portion of his OMPF.  He stated his actions that led to the reprimand were based on his immature and irresponsible conduct.  He stated he was advanced in rank and was selected for duty with the U.S. Army Special Forces.  

6.  On 22 March 2001, the DASEB approved the applicant's request to move his GOMOR to the restricted portion of his OMPF based upon the premise the intent of the GOMOR had been served. 

7.  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, in pertinent part, 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.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket (MPRJ), 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 proper authorities listed in the regulation.  Table 2-1 of this regulation pertains to the composition of the OMPF, which states that if the DASEB approves the request and directs the transfer of the adverse action to the restricted portion of the OMPF, the document directing this action will be filed in the restricted portion along with the adverse action.  

9.  Army Regulation 600-8-104 provides that the restricted portion of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of restricted information is controlled.  Documents in the restricted portion of the OMPF must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods and corrections to other parts of the OMPF.  These records must be maintained to protect the interest of the Soldier and the Army.    

10.  Army Regulation 600-8-104 provides that the OMPF of enlisted Soldiers, when they are appointed as commissioned or warrant officers, will be collocated with their new officer OMPF.  The enlisted OMPF will not be released to officer selection boards.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence indicates the information contained in the GOMOR is accurate and that the GOMOR was properly imposed in compliance with applicable regulations and is properly filed in the applicant’s restricted portion of his OMPF after a DASEB review and decision.  

2.  There is no provision to remove the applicant's GOMOR or the DASEB decision documents from the restricted portion of his OMPF unless there is clear and convincing evidence that the GOMOR is untrue or unjust, and not merely that its intent has been served,.  It should be permanently maintained as a historical record of the applicant's duty performance and conduct while a member of the U.S. Army and its Reserve components.  
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)                                         AR20100030178



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ABCMR Record of Proceedings (cont)                                         AR20100030178



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