IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110006856 


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), imposed on 1 May 2008, from the performance section of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the GOMOR is untrue and is hindering him from promotion and assignments within the Army.

3.  The applicant provides the following documents:

* 3-page copy of a Administrative Separation Board, dated 13 March 2008
* a copy of the GOMOR and allied documents, dated 1 May 2008
* a copy of his appeal memorandum to the Department of the Army Suitability Evaluation Board (DASEB), dated 27 June 2008
* a copy of the DASEB response memorandum, dated 16 October 2008
* a copy of his appeal memorandum to the DASEB, dated 3 December 2009
* a copy of the DASEB response memorandum, dated 13 January 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 May 2003.  He was promoted to staff sergeant (SSG) on 1 June 2007 and is currently serving on active duty.

2.  He served in various positions within and outside the continental United States, including Iraq.  

3.  On 3 June 2007, an Administrative Separation Board at Fort Sill, OK found the applicant disobeyed, a lawful order to have no social contact with a certain female Soldier in his unit.  The board stated the applicant was no longer desirable for retention in the military service and recommended he be discharged from the military service with an issuance of an honorable discharge; however, the board recommended the discharge be suspended for 12 months.

4.  The Commanding General (CG), U.S. Army Field Artillery Center and Fort Sill, OK approved the Administrative Separation Board’s recommendation that the applicant be separated from military service and issued an honorable discharge certificate; however, the CG suspended the discharge for 12 months.  The CG advised the applicant, “You are on notice that any further misconduct during the period of suspension may, and likely will, result in the removal of the suspension and your discharge from the Army."  The CG directed the applicant be given a rehabilitative transfer because he determined the applicant had potential to be an asset to the Army and would benefit from a change in commanders, associates, and living and working conditions.

5.  On 1 May 2008, he was reprimanded via GOMOR (apparently as part of the CG’s separation board action) for disobeying a lawful order.  The CG stated “Beginning in March 2007, you had an unprofessional and improper relationship with a junior enlisted female member of your unit.  As a result your battery commander issued you an order to keep your relationship with this female Corporal on a purely professional level.”  He received a summarized Article 
15 nonjudicial punishment:

* for driving the female Soldier to and from the barracks on 18 March 
2007 in violation of that order
* for again violating, on 2-3 June 2007, the order by hosting the female corporal and other junior enlisted Soldiers at his house and allowing alcohol to be consumed by these Soldiers, causing a previous contentious relationship between two of the Soldiers to end in the police responding to complaints filed by the Soldiers

The GOMOR noted the applicant pled “no contest” to charges of assault and battery of three Soldiers and received a deferred adjudication for 6 months in the Lawton (OK) Municipal Court.


6.  On 20 May 2008, the applicant acknowledged receipt of the GOMOR and elected to submit matters in his own behalf.  He subsequently submitted a rebuttal on 21 May 2008, wherein he indicated that he did not have an inappropriate relationship with the enlisted Soldier, in fact the Administrative Separation Board only found him guilty of violating a no contact order.  The applicant indicated that he was cleared of all allegations mentioned in the GOMOR by the Administrative Board and that a GOMOR in his OMPF would be a blow he would not be able to recover from.  He further indicated that the GOMOR did not accurately reflect the Administrative Separation Board's findings.

7.  On 30 May 2008, after reviewing the applicant's rebuttal and considering all matters available and the recommendations by his chain of command, the CG directed the GOMOR be filed in the applicant's OMPF.

8.  The GOMOR is currently filed in the performance portion of his OMPF.

9.  On 27 June 2008, he petitioned the DASEB for removal of the GOMOR from his records.  On 9 October 2008, the DASEB denied his request.

10.  On 3 December 2009, he petitioned the DASEB for transfer of the GOMOR from his performance fiche to his restricted fiche.  On 7 January 2010, the DASEB denied his request.

11.  Army Regulation 600-37 (Unfavorable Information) provides, in pertinent part, that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any 
general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

12.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.


13.  Only memorandum of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  The above 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’s request that the GOMOR be removed from his OMPF and the supporting documentation he provided were carefully considered.  The GOMOR was given based on the applicant disobeying a lawful order by a superior officer. 

2.  Presumably the CG made his decision to file the GOMOR in the applicant's OMPF only after careful consideration of all the factors presented by the applicant and his attorney.  It was the CG’s prerogative to file the GOMOR in the applicant's OMPF.  

3.  By regulation, in order to support transfer of a GOMOR filed in the OMPF there must be proof that the intended purpose of the GOMOR has been served and that the transfer would be in the best interest of the Army.  After consideration of the applicant's argument, a review of his official record and all documents provided by the applicant, the evidence is insufficient to establish that this GOMOR has served its intended purpose.

4.  In view of the facts of this case, there is insufficient evidence to satisfy the regulatory burden of proof necessary to support transferring the GOMOR in question from the performance to the restricted portion of the applicant’s OMPF.  As a result, there is no basis for granting the requested relief.

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)                                         AR20110006856



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ABCMR Record of Proceedings (cont)                                         AR20110006856



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