IN THE CASE OF:	  

		BOARD DATE:	    20 October 2011

		DOCKET NUMBER:  AR20110014821 


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 reconsideration of his previous request concerning removal of a General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF).  He now requests that the document be transferred to the restricted portion of his OMPF.

2.  He states the GOMOR has served its intended purpose and transfer is in the best interest of the Army because of his dedication to mission above self; because he volunteered for and was assigned to a unit deploying to Afghanistan in September 2011; because of his dedication to the betterment of all Soldiers and their families; and because of his exceptional leadership, performance, and contributions in support of Operation Enduring Freedom (OEF).  He further states, in effect, the general officer who directed filing of the GOMOR has recommended it be removed.

3.  He provides a self-authored memorandum, a court document, a memorandum to the Department of the Army Suitability Evaluation Board (DASEB) from the general officer who directed filing of the GOMOR, a memorandum from the U.S. Army Human Resources Command (AHRC), a Certificate of Training, and his Officer Evaluation Reports (OERs) for periods ending 21 May 2009 and 21 May 2010.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100018298 on 10 May 2011.

2.  At the time he submitted his application, the applicant was serving on active duty in the rank of chief warrant officer 3 (CW3).

3.  On 9 March 2009, he received a GOMOR for physically assaulting and pointing a loaded weapon at Ms. C------- S------- on 13 January 2009.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.

4.  On 10 March 2009, he acknowledged receipt of the GOMOR and elected to submit matters on his behalf.

5.  In a letter, dated 25 March 2009, the applicant's civilian attorney indicated the applicant, on 19 February 2009, had been convicted of domestic violence stemming from the 13 January incident.  The attorney noted the applicant had appealed the conviction. 

6.  On 27 March 2009, he submitted a rebuttal to the GOMOR.  He requested that it be reviewed and considered before a final determination was made regarding filing of the document in accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 3-4b(1)(b).  He stated he had been in the military 14 years and had never been accused of domestic violence before this incident.  He also provided his version of the events that led to him being charged with domestic violence in the third degree.

7.  On 30 March 2009, his chain of command recommended the GOMOR be filed in his local unit file.  

	a.  His company commander stated he was a "top-notch instructor pilot" who was "one of the most reliable and consistent performers in the company."  

	b.  His battalion commander stated he had been involved in a "one-time incident between boyfriend and girlfriend ending a relationship that should not jeopardize [his] career" and that his performance before the incident had been excellent.

	c.  His brigade commander recommended filing the GOMOR in the local file until his civil court case was complete and reviewing it at that point.  He stated he would support filing the GOMOR in his OMPF if the civil conviction was upheld.

8.  On 2 April 2009, the imposing authority directed that the GOMOR be filed in his OMPF in accordance with Army Regulation 600-37, paragraph 3-4b.  The GOMOR and allied documents are filed in the performance portion of his OMPF.

9.  On 16 December 2009, he was found not guilty of assault in the third degree in the Circuit Court of Coffee County, AL.

10.  On 5 January 2010, he submitted a request through his chain of command to the GOMOR-imposing authority to reconsider his original decision and remove the GOMOR from his OMPF.  On 7 January 2010, a new chain of command endorsed his request.  His company commander recommended the GOMOR be withdrawn, and his battalion and brigade commanders recommended filing the GOMOR in the local unit file.  Each praised his duty performance.

11.  On 5 January 2010, he appealed to the DASEB for removal of the GOMOR from his OMPF.  His request was denied.  A DASEB memorandum, dated 6 April 2010, confirming the denial is filed in the performance portion of his OMPF.

12.  In a letter, dated 11 January 2010, the GOMOR-imposing authority informed the DASEB that his decision to initiate and file the GOMOR in the applicant's OMPF was not based on his civil conviction by the Municipal Court of Enterprise, AL, on 19 February 2009.  The GOMOR imposing authority stated he was fully aware the applicant's case was under appeal.  The GOMOR imposing authority also recommended the GOMOR be removed from the applicant's OMPF.

13.  The applicant's OERs for the periods ending 21 May 2009 and 21 May 2010 show his raters and senior raters praised his performance and rated his promotion potential as "outstanding performance, must promote" and "best qualified."  Each explicitly stated he should be promoted to chief warrant officer 4 (CW4). 

14.  In his self-authored memorandum, he states:

* he was found innocent of all charges
* the GOMOR-imposing authority recommended removal of the GOMOR
* the Commanding General, AHRC terminated the elimination action against him
* he has successfully completed the Sexual Harassment/Assault Response and Prevention (SHARP) course
* he has continued to strive to be an example of Army Values as shown by his most recent OERs

15.  He also states the GOMOR was a "detouring document" for his promotion to CW4 on the May 2011 promotion board.

16.  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; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and 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.  It states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	a.  The regulation provides 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 filing determination is made.

	b.  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.

	c.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  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.

	d.  If an appeal is denied a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record.  The appeal will be placed in the restricted section of the OMPF.
DISCUSSION AND CONCLUSIONS:

1.  Even though the applicant was found innocent by a civil court, the evidence of record shows he was involved in an incident that warranted the attention of his chain of command.  There is no convincing evidence indicating the GOMOR he received was unjust. 

2.  However, it appears the indiscretion that led to his GOMOR was an isolated incident, and the GOMOR has served its purpose.  Considering the GOMOR-imposing authority's support for removal of the document from his OMPF and his chain of command's high regard for his duty performance, it would be in the best interest of the Army to transfer the GOMOR and all allied documents, including the DASEB memorandum denying his request, to the restricted portion of his OMPF.  

BOARD VOTE:

___X____  ___X___  __X_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20100018298, dated 10 May 2011.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring his GOMOR and all allied documents, including the DASEB memorandum denying his request, to the restricted portion of 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)                                         AR20110014821





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ABCMR Record of Proceedings (cont)                                         AR20110014821



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