IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20110001911 


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 19 March 2009, from his official military personnel file (OMPF) or that it be moved to the restricted section of his OMPF.

2.  The applicant states the GOMOR is derogatory and is a poor and inaccurate reflection of his character and service to the Army.  He has been in the Army for 4 years and has never received any kind of derogatory counseling.  The GOMOR unfairly discredits his character, judgment, and service.  All his performance evaluations have been of the highest regard since he received the GOMOR which is a testament of loyalty, honesty, and favorable service to the Army.

3.  The applicant provides:

* his Officer Record Brief, dated 21 January 2011
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 67-9 (Officer Evaluation Report) (OER) for the period 8 September 2009 to 7 September 2010

CONSIDERATION OF EVIDENCE:

1.  He was commissioned as a second lieutenant in the Regular Army, Military Intelligence Branch on 4 December 2008.  He completed 2 years, 5 months, and 27 days of previous enlisted service in the Regular Army and had attained the rank of sergeant/pay grade E-5.

2.  On 19 March 2009, he received a GOMOR for his conduct on 14 February 2009.  The GOMOR states he was arrested for fleeing the scene of an accident, which was later re-titled to reckless driving.  He stated he was drinking and driving on that evening.  He had consumed numerous alcoholic drinks at various locations around Columbus, GA.  While attempting to back out of a parking space, he backed his vehicle into several parked cars.  After assessing the damage to his car, he fled the scene, ignoring the calls from a security guard to stop.  He was contacted by police, admitted the evening's events, and was taken into custody and charged with leaving the scene of an accident.  On 13 March 2009, he pled guilty to reckless driving and was sentenced to 12 months of confinement to be served on unsupervised probation and ordered to make restitution.

3.  The GOMOR states his conduct was reprehensible and unacceptable.  He had disgraced himself, his command, and the U.S. Army.  His lack of professionalism and judgment was cause to further question his decision-making abilities.  His conduct constituted unacceptable behavior by a commissioned officer and his ability to lead and provide a positive influence on Soldiers was questionable.

4.  On 25 March 2009, he wrote a letter of apology to his commander for his behavior on 14 February 2009.  He accepted full responsibility, legally, morally, and financially for the incidents of 14 February 2009.  As part of his responsibility to the Army, the civilian community, and himself, he enrolled in the Army Substance Abuse Program, satisfied all judgments and fines accrued, satisfied any vehicular damage claims, and committed himself to using a taxicab when deciding to drink alcoholic beverages.

5.  On 31 March 2009, he submitted a memorandum of rebuttal to the GOMOR.  He stated he took full responsibility for any negative impact his situation brought upon the U.S. Army, his unit, and himself.  He understood the tarnishing effect that such a situation can have on his reputation and deeply apologized for allowing the situation to undermine his reputation as a commissioned officer in the U.S. Army.  He realized he showed a lack of "preventive judgment" which could have led to a more serious accident with more detrimental results.  He asks the command to consider that his participation in extensive field training and his exhaustion from outdoor training, coupled with moderate revelry, contributed to his loss of judgment and bearing.

6.  On 3 April 2009, his chain of command unanimously recommended that the GOMOR be filed in his OMPF.

	a.  His company commander stated the applicant didn't fully believe he did anything wrong and he continued to make excuses for his actions.

	b.  His battalion commander stated the applicant failed to see what he did was wrong and used excuses about fatigue from field training as an explanation for his poor judgment.

7.  On 7 April 2009 after considering his rebuttal and the recommendations of his chain of command, the imposing authority directed the GOMOR be filed in the applicant's OMPF.

8.  On 28 January 2010, the Department of the Army Suitability Evaluation Board denied his request to remove the GOMOR from his OMPF.

9.  On 4 June 2010, he was promoted to first lieutenant.

10.  He received an annual OER for the period 8 September 2009 to 7 September 2010.  His performance was rated "outstanding performance, must promote" by his rater and his promotion potential to the next higher grade was rated "best qualified" by his senior rater.

11.  He received a change-of-rater OER for the period 7 September 2010 to 6 December 2010.  His performance was rated "outstanding performance, must promote" by his rater and his promotion potential to the next higher grade was rated "best qualified" by his senior rater.

12.  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.

	a.  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.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

	b.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF.  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 burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

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 OMPF.  He has not provided clear and convincing evidence the GOMOR was not true or is unjust or that the presumption of regularity should not be applied.  Therefore, there is an insufficient basis to remove the GOMOR from his OMPF.

2.  He took responsibility for his actions and apologized for allowing the situation to undermine his reputation as a commissioned officer in the U.S. Army at the time the GOMOR was imposed.  However, he now contends the GOMOR is derogatory and is a poor and inaccurate reflection of his character and service to the U.S. Army.  He contends the GOMOR unfairly discredits his character, judgment, and service.

3.  He has been promoted and received two OERs since receiving the GOMOR.  His efforts to overcome his act of indiscretion are noteworthy.  However, based on the applicant's belief that the GOMOR is derogatory and is a poor and inaccurate reflection of his character and service to the U.S. Army shows the intended purpose of the GOMOR has not been fully served.  As such, the GOMOR is material a promotion board should consider when comparing his records against those of his peers who do not have misconduct documented in their records.

4.  Therefore, there is an insufficient basis to move his GOMOR to the restricted section of his OMPF at this time.


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 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)                                         AR20110001911



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001911



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1