IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110013103 


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) from his official military personnel file (OMPF) or in the alternative that the GOMOR be transferred from the performance section to the restricted section of the OMPF.

2.  The applicant states the information contained in the GOMOR is unsubstantiated and untrue.  He claims the allegations leveled against him in connection with the December 2008 incident are totally unsubstantiated and the inclusion of the GOMOR in his OMPF is unjust.

3.  The applicant provides a packet appealing the decision of the Department of the Army Suitability Evaluation Board (DASEB), including Board of Inquiry proceedings and supporting character reference statements.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he served on active duty in the Regular Army in an enlisted status for 9 years, 1 month, and 5 days from 9 June 1997 through 13 July 2006.  On 14 July 2006, he was appointed as a warrant officer.  He was promoted to chief warrant officer two/W-2 on 14 July 2008.

2.  In December 2008 while serving in Korea, the applicant engaged in inappropriate behavior with a female enlisted Soldier.

3.  On 9 July 2009, the Commanding General (CG), 2nd Infantry Division, issued an official reprimand to the applicant for poor judgment and conduct unbecoming an officer.  The CG notified the applicant that he had 7 days to submit any rebuttal to the GOMOR's contents.  He further informed the applicant that he intended to direct filing the reprimand in his OMPF; however, prior to making a filing decision, he would consider any matters the applicant presented to him.

4.  On 14 July 2009, the applicant acknowledged receipt of the GOMOR and indicated he would submit matters for the CG's consideration.  On 17 July 2009, he submitted a response to the GOMOR.  In his response he stated that although he did not completely agree with the female Soldier's account of what happened, he did acknowledge that he acted inappropriately toward a subordinate female enlisted Soldier.  He further indicated there was no excuse for his behavior and he admitted he had touched the female enlisted Soldier in an inappropriate manner, but did not expose himself to her as alleged in the GOMOR.  He also denied allegations of a prior incident in 2002 also referred to in the GOMOR.

5.  On 29 July 2009 after considering all matters submitted by the applicant, the CG forwarded the GOMOR for filing in his OMPF.

6.  On 10 December 2009, a Board of Inquiry convened with the applicant and his counsel present.  The purpose of the Board of Inquiry was to provide the applicant the opportunity to show cause for his retention in the Army.  After considering all the evidence and testimony, including several character references submitted supporting the applicant's retention, the Board of Inquiry found the allegations of personal misconduct against the applicant supported his elimination from the Army.  The Board of Inquiry recommended the applicant's service be characterized as general under honorable conditions.

7.  On 28 September 2010, the applicant petitioned the DASEB to have the GOMOR removed from, or in the alternative, transferred to the restricted section of his OMPF.  The applicant based his appeal on information contained in the GOMOR being unsubstantiated and untrue and inclusion of the GOMOR in his OMPF being unjust.

8.  On 18 November 2010 after carefully considering all the evidence submitted by the applicant in his appeal, the DASEB found the evidence presented did not establish clearly and convincingly that the document under consideration was untrue or unjust and that the presumption of regularity should not be applied.  The DASEB unanimously voted to deny the applicant's appeal to remove the GOMOR from the performance section or transfer the GOMOR to the restricted section of his OMPF.

9.  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.

10.  Chapter 7 of Army Regulation 600-37 contains guidance on removal of unfavorable information from official personnel files.  It states that appeals and petitions for removal of unfavorable information are to be directed to the DASEB.  It further states 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.  It also provides guidance for appeals for transfer of OMPF entries and states that these appeals may be based on proof that the documents in question have served their intended purpose 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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  It provides for the correction of military records in cases where there is clear evidence that the record is in error or unjust.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the information contained in the GOMOR is unsubstantiated and filing of the GOMOR in his OMPF is unjust and should be removed or transferred to the restricted section of his OMPF has been carefully considered.  However, the factors raised by the applicant do not provide a sufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms the GOMOR was properly processed and filed in the applicant's OMPF in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the GOMOR process.

3.  By regulation, 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.  To support alteration or removal of the document from the OMPF, an individual has the burden to provide clear and convincing evidence that the document is untrue or unjust, in whole or in part, to support its removal from the OMPF.  The applicant failed to meet this regulatory burden of proof.

4.  The evidence of record clearly shows and the applicant admits that he engaged in inappropriate behavior with a female enlisted Soldier in December 2008 which confirms the basis for the GOMOR as poor judgment and conduct unbecoming an officer.  The fact that he quibbles with the language used supporting the GOMOR is not clear and convincing evidence that the GOMOR was untrue or unjust.  As a result, there is no evidence showing any error or injustice related to the original issuance of the GOMOR or with its filing in the OMPF.

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)                                         AR20110013103



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ABCMR Record of Proceedings (cont)                                         AR20110013103



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