IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110009623 


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 that the General Officer Memorandum of Reprimand (GOMOR), dated 1 July 2010, be removed from his Official Military Personnel File (OMPF). 

2.  The applicant states that the GOMOR should be removed from his OMPF.  The imposing authority (IA) initially directed the GOMOR be filed in his OMPF, but later directed it be filed in his local military file.  On 8 April 2011, he opened his OMPF to validate his records and noticed the GOMOR was still in his OMPF.  It was not removed as the IA requested.  He has approached the appropriate personnel at Fort Bliss to have it removed without success. 

3.  The applicant provides copies of a memorandum [apparently intended for the Equal Employment Opportunity Office at Fort Bliss] in which he describes various acts of discrimination and harassment that occurred in his unit. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving as a master sergeant in the Regular Army.

2.  On 10 October 2000, the applicant received an administrative GOMOR from the Commanding General, Headquarters, 32d Army Air and Missile Defense Command, Fort Bliss, TX, for being derelict in his duties and making false statements while serving as first sergeant.  The GOMOR states the applicant was informed that one of the Soldiers in his unit had been sexually assaulted.  He was responsible for reporting the allegation to the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) and the Sexual Assault Response Coordinator.  He was also responsible for ensuring the victim was treated fairly and with respect and that she received whatever support she required.  Instead of fulfilling his responsibilities he chose to reprimand one of the Soldiers who reported the incident for bypassing the chain of command and later ordering the Soldiers involved to not further discuss the allegations.  He also lied about his knowledge of and response to the incident in a sworn statement to the CID. 

3.  On 12 July 2010, the applicant provided a response in which he requested the GOMOR be placed in his local file.  He denied any knowledge of the alleged sexual assault.  He agreed that he did reprimand one of the Soldiers for bypassing the chain of command.  He did not know the Soldier was exercising the commander’s open door policy.  He had learned from the situation.  He had served in the Army for 31 years and never had his integrity brought into question.   The applicant's battalion commander recommended filing the reprimand in his OMPF.

4.  The brigade commander recommended that the reprimand be filed in the applicant’s local file.  The IA directed the administrative GOMOR be filed in the applicant’s OMPF.
 
5.  On 5 April 2011, the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) for relief, requesting that the GOMOR be removed from his OMPF.  The applicant provided a copy of the memorandum in which the IA states he issued a memorandum, dated 18 August 2010, that revoked the 29 July 2010 decision to file the GOMOR in the OMPF.  He confirmed that this decision was intended to supersede the 29 July 2010 decision.  He further requested the GOMOR be removed from the OMPF and destroyed. 

6.  On 28 April 2011, the DASEB determined there was insufficient evidence to justify removal of the administrative GOMOR and denied the appeal.

7.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part that administrative letters 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 letter 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 filing determination is made.  Letters of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer level authority and are to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF then 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 chapter 7.  Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  

8.  Paragraph 7-2f provides that an officer who directed the filing in the OMPF of an administrative letter of reprimand, admonition, or censure may request its revision, alteration, or removal, if later investigation determines it was untrue or unjust, in whole or in part.  The basis for such determination must be provided the DASEB in sufficient detail so as to justify the request.  An officer who directed the filing of such a letter in the OMPF may not initiate an appeal on the basis that the letter has served its intended purpose.  However, a letter of support may be submitted with the recipient’s appeal.

DISCUSSION AND CONCLUSIONS:

1. The applicant states that the GOMOR, dated 1 July 2010, should be removed from his OMPF.  The IA initially directed the GOMOR be filed in the performance section of the applicant’s OMPF, but later issued a memorandum stating the GOMOR should be filed in his local military personnel file for three years.  

2.  Notwithstanding the IA’s decision to direct the GOMOR be filed in the applicant’s local military personnel file, the IA did not indicate the GOMOR was untrue or unjust.  The IA did not indicate that a new investigation was conducted that would have impacted on the truth or fairness of the GOMOR.  

3.  The applicant was serving in a first sergeant position and, as such, possessed wide discretion.  His actions concerning an alleged incident of sexual assault reflected poorly on him and the position he held.  Due to the seriousness of the situation, it is appropriate that the GOMOR be retained in the applicant’s OMPF.  

4.  However, in view of the facts of this case, and as a matter of equity, it would be appropriate to transfer the GOMOR, dated 1 July 2010, and all allied documents, to the restricted section of his OMPF.


BOARD VOTE:
________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by
transferring the GOMOR, dated 1 July 2010, and all allied documents, to the restricted section of his OMPF.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the GOMOR from his OMPF.



      _______ _   _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)                                         AR20110009623





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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