IN THE CASE OF:	   

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110011134 


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 transfer of his 15 August 2007 general officer memorandum of record (GOMOR) to the restricted portion of his record.

2.  The applicant states the GOMOR has served its purpose and now prevents his progression to the rank of major.

3.  The applicant provides copies of four officer evaluation reports (OER's) and seven documents related to the imposition of the GOMOR.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant, a prior-enlisted Army National Guard (ARNG) Soldier, was commissioned as a U.S. Army Reserve military intelligence officer on 8 May 1999.  He subsequently accepted a Regular Army commission and was promoted to captain (CPT) effective 1 March 2003.

3.  On 6 February 2007 as a result of a kitchen fire in his home, the North Yorkshire Police Department (NYPD), United Kingdom, conducted a proper search of the applicant's off-base residence in coordination with military law enforcement authorities based upon the suspicion the applicant possessed illegal explosives.  The reason for the search was based on an allegation made to the police that the fire may have been related to an activity other than the reason applicant provided as the cause of the fire.  It was alleged that the fire might have been the result of the applicant working with a quantity of saltpeter in order to make a smoke bomb.  The possession of explosive substances and the making of an explosive object are arrestable offenses under the British Explosives Act of 1883.

4.  During the search, several prohibited items were found, including several items related to the reloading of ammunition, two pounds of smokeless powder, approximately 1000 pistol primers, a quantity of empty shotgun shells, and approximately 1435 percussion caps.  The percussion caps were the property of the U.S. Government intended to be used with a weapons system previously located at Royal Air Force Menwith Hill, England, UK.  No saltpeter was found and the applicant stated the saltpeter that caused the fire was for use in his garden.  Upon completion of the search, NYPD confiscated the above-listed items for subsequent destruction and turned the case over to the military for disposition.  The applicant stated he did not know how to dispose of the U.S. Government percussion caps that he found in the dormitory on a final sweep for hazardous material.  NYPD declined to take any further action in this matter and consider it closed.

5.  On 15 February 2007, the applicant's commanding officer appointed an investigating officer (IO) to conduct an investigation on the potential charges of dereliction of duty by failing to properly dispose of military property and wrongful appropriation of military property.

6.  On 15 March 2007, the IO completed his investigation.  He found the allegation of failing to properly dispose of military property was substantiated, but the allegation of wrongful appropriation was unsubstantiated.  Further, the IO recommended that the leadership consider appropriate administrative or non-punitive action against the applicant.  During the investigation it was noted that the applicant had been one of the assigned personnel responsible for cleaning 

up and disposing of hazardous material from a dormitory.  Included in the items disposed of were 19 boxes of percussion caps.

7.  On 27 March 2007, the 21st Theater Sustainment Command, Netherlands, Law Center completed a legal review of the investigation and found it complied with the legal requirements of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).

8.  On 13 July 2007, the Commanding General (CG), 21st Theater Sustainment Command, reprimanded the applicant for dereliction of duty by failing to properly dispose of the percussion caps that were U.S. Government property.  His filing determination was deferred to allow the applicant to respond or rebut the GOMOR.

9.  On 27 July 2007, the applicant submitted a rebuttal to the GOMOR.  He stated his lapse in judgment was inappropriate and there was no excuse for his actions.  He stated that during this period he was under extreme stress from both work and family.  He was assigned as the battalion adjutant (S-1) and battalion supply (S-4) officer and he had 10 additional duties in a geographically-isolated Army unit in a joint, combined, and interagency environment.  His wife was pregnant with their first child and was diagnosed with preeclampsia, a potentially-fatal condition for both mother and baby.  Shortly after informing his wife's side of the family about the pregnancy, his father-in-law died of a brain hemorrhage adding to an already-stressful situation for his wife and the baby.  He was unaware the black powder had been packed and transported to England.

10.  On 7 August 2007, the CG directed the reprimand be filed in his official military personnel file (OMPF).  In his determination, the CG noted the nature of the offense was extremely serious and the applicant could have been punished under British law.

11.  The OER covering the period of the GOMOR shows his rater rated him as "Satisfactory Performance - Promote."  His rater stated that despite having only approximately 30-percent assigned strength in the S1 and S4 sections for much of the rating period, the applicant managed to meet most of his many suspenses. 
He has frequently shown initiative by revamping the unit's sponsorship program, greatly improving the battalion safety council, designing a local land navigation course, executing the lateral transfer of two vehicles, and reestablishing the battalion's government purchase card program.  He submitted the initial 

recommendation for all military personnel assigned to the station to receive the Joint Meritorious Unit Award.  His senior rater rated him as fully qualified, but noted that his achievements were overshadowed by the fact he was the subject of an Army Regulation 15-6 investigation and the charge of dereliction of duty by failing to properly dispose of military property was substantiated.

12.  His subsequent OER shows his rater rated him as "Outstanding Performance – Must Promote" and his senior rater rated him as "Best Qualified."

13.  The applicant was released from active duty on 30 June 2008.  He was appointed as a CPT in the Indiana ARNG effective 9 July 2008.  He is currently shown to be in the inactive ARNG.

14.  His application was referred to the Department of the Army Suitability Evaluation Board (DASEB) for any possible action.  However, due to the application being more than 3 years after the fact and that the applicant was now in the inactive Army National Guard, the DASEB determined it did not have jurisdiction to act on the application and the case was returned to the ABCMR.

15.  Army Regulation 600-37 (Unfavorable Information) provides that:

	a.  Administrative letters/memoranda 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.

	b.  The letter/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.

	c.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

	d.  Letters/memoranda of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority.  The direction for filing is to be contained in an endorsement or addendum to the letter/memorandum.

	e.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7.


	f.  Chapter 7 provides that:

		(1)  Once filed in an OMPF, a document is presumed to be administratively correct.

		(2)  Appeals to the DASEB to relocate a reprimand, admonition, or censure are based on proof the intended purpose has been served and transfer to the restricted section would be in the best interest of the Army.  The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter/memorandum was imposed.

		(3)  If the appeal is denied, the DASEB letter of denial will be filed in the performance section and the appeal itself and any associated documents will be filed in the restricted section of a Soldier's OMPF.  Otherwise, this Board may act in accordance with Army Regulation 15-185 (Army Board for Correction of Military Records) and the Soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the GOMOR has served its purpose and now prevents his progression to the rank of major.

2.  All personnel being assigned to foreign duty locations receive a briefing on the differences in culture and legal facts that will impact their lives while serving in that foreign country.  Furthermore, as a military intelligence officer, the applicant would have been more aware of the higher restrictions on firearms and related items that could be considered to be used in making explosive devices.

3.  The possession of the ammunition reloading equipment, smokeless powder, pistol primers, and percussion caps in the United Kingdom was a serious offense.  The fact that the percussion caps were the property of the U.S. Government and it was the applicant's responsibility to have already disposed of these items compounds the seriousness of their possession by the applicant.  However, the applicant was not reprimanded for this potentially more serious charge but only for not properly disposing of the U.S. Government percussion caps.

4.  The applicant has not provided and his record does not contain any indication the GOMOR has served its intended purpose and transfer to the restricted section of his OMPF would be in the best interest of the Army.
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)                                         AR20110011134



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011134



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1