IN THE CASE OF:	  

		BOARD DATE:	    29 March 2012

		DOCKET NUMBER:  AR20110017803 


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) he received on 7 April 2006 from his official military personnel file (OMPF).

2.  The applicant states:

	a.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR), paragraph 2-2 [paragraph 2-4], requests a timely filing within 3 years.  However, the regulation does not prohibit the board from making a correction after that time limit has expired.  He believes there are several mistakes made in the file, which inappropriately influenced the filing of the GOMOR in his OMPF and warrants a removal.

	b.  He would like to apologize for his actions on 21 June 2005.  As a field grade officer, he knows there was no excuse for his behavior.  He learned from his mistake and took corrective action.  He continued counseling with the Army Substance Abuse Program (ASAP) and increased his participation in Alcoholics Anonymous, his church, and private alcohol counselor.  This was an isolated incident, where he succumbed to his alcoholism after his wife informed him that she wanted to end their 11 years of marriage.  Although, that is no excuse for his actions, he wants the Board to be aware of the circumstances surrounding the incident and the actions he took to preclude any further incidents.


	c.  He believes his commanding officer inappropriately influenced the filing of his GOMOR by including irrelevant and inaccurate information.  First, he mentioned an incident that took place in Miami in June 2003.  This incident was never considered by his Board of Inquiry in their findings.  The first line of the memorandum stated that "On 4 April 2006, a Board of Inquiry determined that you committed conduct unbecoming an officer and personal misconduct.  This decision was based on his voluntarily [sic] intoxication at the Miami International Airport, in a duty status, to such an extent that he passed out and needed to be hospitalized."  This information was never presented to the panel members as evidence to be considered for the purpose of a misconduct finding.  This information potentially influenced the Commanding General when deciding where to file this GOMOR.

	d.  The information about the Miami incident was factually inaccurate.  He did collapse at the airport; however, hospital physicians diagnosed the cause as being "syncope respiratory failure" (fainting with loss of respiration).  Alcohol was never mentioned as a cause (as it was not mentioned in the diagnosis) and he was never found to be unconscious due to voluntarily intoxication.  He did consume alcohol at the airport and revealed this information to his chain of command.  However, since that was unrelated to the incident, no disciplinary or administrative action was taken.  Subsequently, he received an Above Center of Mass on his next officer evaluation report (OER).

	e.  He was never found drunk and incoherent in his hotel room a day after the start of the Information Operations Qualification Course (IOQC).  He was found in his hotel room injured the morning the course started, not the day after.  He neither was absent without leave (AWOL) nor was he dropped from the course.  He was removed by his chain of command despite the fact the Cadre recommended he remain to complete the course.  

	f.  The final factual inaccuracy falsely claims he was an alcohol rehabilitation failure.  The endorsement states his battalion commander in conjunction with ASAP counselors found him to be a rehabilitation failure.  However, the ASAP never considered him an ASAP failure.  Moreover, they testified on his behalf during his show cause board and recommended a specific course of treatment.  Unfortunately, his chain of command did not follow their recommendations and began administrative separation process instead.

	g.  As a result, his Show Cause Board found him guilty of conduct unbecoming an officer and personal misconduct.  However, the findings within the reprimand contain false information about other alleged charges the Board of Inquiry never found him guilty of committing.  He feels these were unfairly considered in the decision of where to file his reprimand.
	h.  He realizes now that he is an alcoholic.  However, with treatment and the support of his family, he has kept this addiction at bay.  He has been sober for over 5 years and served 22 months in combat with no further incidents.  He feels that he has been punished enough for his poor decision on one night during his career.  The reprimand prevented him from being promoted with his peers and kept him in limbo for almost a year.  The GOMOR had more than served its purpose, precluding him from advantageous assignments and being promoted.  He is just trying to prevent it from interfering with his life after he retires.  

3.  He provides:

* Memorandum to Career Field Designator (CFD) Appeal Boards, dated 27 August 2004
* Memorandum from the ASAP Counselor, dated 20 July 2005
* Notification to Show Cause for Retention memorandum, dated 22 October 2005
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 4 April 2006
* GOMOR, dated 7 April 2006
* Acknowledgment of GOMOR memorandum, dated 10 April 2006
* Individual Response to GOMOR, dated 12 April 2006
* Letter from his Board of Inquiry counsel to his battalion commander, dated 13 April 2006
* Memoranda recommending permanent filing of the GOMOR in his OMPF, dated 14 April and 3 May 2006.
* Memorandum to Army Grade Determination Review Board, dated 4 February 2011
* Memorandum supporting the GOMOR’s removal from his executive officer, dated 11 April 2011
* Resume

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’s military record shows he was commissioned in the Regular Army, as a second lieutenant, on 29 July 1993.  He was promoted to major (MAJ) on 1 October 2004.

3.  In a memorandum to the CFD Appeals Board, dated 27 August 2004, the applicant's battalion commander endorsed the applicant's appeal for designation into the Operations Career Field as a Functional Area 39, Psychological Operations and Civil Affairs Officer.

4.  In a memorandum to the applicant's company commander, dated 20 July 2005, the ASAP Counselor stated:

	a.  In consultation with the ASAP staff, the company commander had declared the applicant a rehabilitation failure in the Fort Bragg ASAP, and under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) [sic], the Soldier would be processed for separation from the service.

	b.  The applicant made his initial self-referral into ASAP on 25 August 2003 for triage and evaluation after what he disclosed as passing out in the Miami Airport on 6 June 2003.  He was given a full psychological evaluation on 9 September 2003 and determined to have no diagnosis apparent.  He was referred to the 6-hour education and prevention class, Alcohol and Drug Abuse Prevention Training (ADAPT), and a follow-up individual session, with planned command consultation, to rule out alcohol abuse and/or further problems noticed by the patient or the unit.  The applicant completed the ADAPT class on 8 September 2003.  He was returned to duty with no need for further services upon completion of his individual session on 11 September 2003 and previous telephonic consultation with his commander on 10 September 2003.  His case was closed on 11 September 2003 and as there was no diagnosis apparent, no prognosis was warranted.

   c.  The applicant made a second self-referral to seek inpatient treatment in November 2004 and was referred to Wilmington Treatment Center, a civilian hospital, from the Womack Army Medal Center Emergency Department.  He was diagnosed at that time with Alcohol Dependence Disorder and in need of medical detoxification.  He successfully completed that program and was referred to ASAP for follow-up care.  Aftercare was arranged for applicant on an outpatient basis with ASAP, through arrangements made with his commander and the ASAP Clinical Director via a telephonic conference on 29 December 2004.  The applicant began attending the Aftercare Group on 7 January 2005.  He was also given a brief reevaluation and diagnosis confirmed as Alcohol Dependence.
   
   d.  The applicant reported one relapse since his November 2004 enrollment into ASAP.  That recent relapse, July 2005, resulted in his failure to report to duty as a well as sustaining an injury to his knee.  The chain of command had determined that incident, the applicant's conduct as a field grade officer, along with his previous referrals to ASAP to be the basis for the applicant's determination as a rehabilitation failure.
   
   e.  Therefore, the ASAP treatment staff recommended patient be administratively discharged immediately under Chapter 9, with referral to the Department of Veterans Affairs (VA) for follow-up treatment.  It was highly recommended that the applicant participate in a family therapy program to include his spouse, either inpatient or intensive outpatient treatment, in order to be successful in his recovery.  As the chain of command had determined that he was non-retainable, and thus not eligible for active duty military inpatient substance abuse treatment, it was recommended that the applicant be given referral information to the VA Hospital and other community treatment facilities.  
   
   f.  The ASAP Counselor cited the disclosure of confidential records protected by Federal Law.

5.  On 6 July 2005, he received counseling for failure to report to the IOQC and subsequently being found intoxicated in his BOQ (bachelor officers quarters).  He was ordered to cease all consumption of alcohol, referred to participate in the ASAP immediately and his local clearance was suspended.  He was also advised of the issuance of a FLAG (Report of Suspension of Favorable Personnel Action) based on his suspected misconduct.

6.  On 22 October 2005, the Commanding General, U.S. Army Civil Affairs and Psychological Operations Command, Fort Bragg, NC, notified the applicant of the requirement to appear before a show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-2a(7), 4-2b(5), 4-2b(8), and 4-2b(14), because of substandard performance of duty, misconduct, and moral or profession dereliction.  The memorandum stated the action was based on the following specific reasons for elimination:

	a.  Failure to respond to alcohol problem rehabilitation.  He initially self-referred into the ASAP on 25 August 2003 for evaluation after "passing out in the Miami airport."  He then made a second self-referral on 24 November 2004 after seeking inpatient treatment at Wilmington Treatment Center, where he was diagnosed with Alcohol Dependence Disorder.  Subsequently, he received a command referral in July 2005 after the alcohol incident occurring during the IOQC on 21 June 2005.

	b.  Acts of personal misconduct, failure of a course at a service school because of misconduct, moral or professional dereliction, and conduct unbecoming an officer.  He was terminated from the IOQC on or about 21 June 2005, due to his failure to report to the course that morning because of severe intoxication resulting in personal injury to his knee.  

	c.  In conjunction with this action a Suspension of Favorable Personnel Actions had been initiated according to Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS).

7.  The 22 October 2005 memorandum also advised him of his rights and possible elimination from the service.

8.  A Board of Inquiry convened on 4 April 2006 and determined there was:

* insufficient evidence to support a finding that the applicant failed to respond to alcohol rehabilitation efforts in a reasonable length of time
* insufficient evidence to support a finding that the applicant failed to complete the IOQC because of his own misconduct
* sufficient evidence to support of the finding that the applicant committed personal misconduct
* sufficient evidence to support a finding that the applicant committed conduct unbecoming an officer.  

9.  The board recommended the applicant be retained in the military service.

10.  On 7 April 2006, he was issued for GOMOR for conduct unbecoming an officer and personal misconduct.  The GOMOR stated:

   a.  That a 4 April 2006 Board of Inquiry determined that he had committed conduct unbecoming an officer and personal misconduct.  That decision was based on his voluntary intoxication at the Miami International Airport, in a duty status, to such an extent that he passed out and needed to be hospitalized.  Additionally, the decision was also based on his voluntary intoxication at Fort Leavenworth while attending in the IOQC.  After being found drunk and incoherent in his hotel room, a day after the start of the course, a test of his blood determined he had 0.26 Blood Alcohol Content.  That severe intoxication resulted in his being AWOL from the IOQC and being dropped from the course as well as severely injuring his knee.  Subsequently, his battalion commander, lieutenant colonel (LTC) Rxxxx, in consultation with ASAP Counselors determined that he was an alcohol rehabilitation failure.

	b.  He was hereby reprimanded for his actions.  His inability to conduct himself in an appropriate manner showed a lack of sound judgment and called into question his continued ability to serve as a commissioned officer.  He had violated a position of trust and had discredited himself, the U.S. Army, and that command.  In the future, he would conduct himself in accordance with the high standard and mature judgment expected of a commissioned officer in the U.S. Army, U.S. Army Special Operations Command, and the 4th Psychological Operations Group (Airborne).

	c.  That reprimand was imposed as an administrative measure, in accordance with Army Regulation 600-37 (Unfavorable Information) and not as punishment under the Uniform Code of Military Justice, Article 15.  The battalion commander stated that he had presently intended on recommending to MG Axxxxxxx that the GOMOR be filed in the applicant's OMPF.

11.  On 10 April 2006, he acknowledged receipt of the GOMOR and elected to submit a statement in his own behalf.

12.  In the applicant’s statement, dated 12 April 2006, he stated:

	a.  He was an alcoholic and had been for several years.  He was aware that his drinking had become more and more frequent, but he had no idea that he had a disease (alcoholism).  As far as his drinking was concerned, he lived in a full-blown denial until his eyes were opened.

	b.  As to the incident in Miami (5 June 2003), he admitted that he had consumed alcohol, more than he should have given his TDY (temporary duty) status and for that he sincerely apologized.  He was unaware of his problems/disease at the time (as he was not diagnosed with alcohol dependency until November 2004).  While he was wrong for consuming the amount of alcohol that he did, he would like to point out that he was not hospitalized solely for alcohol related reasons.  He was admitted for syncope respiratory failure.  His doctors determined that several factors played a role in his loss of consciousness, aside from alcohol.  

   c.  He also felt it was inappropriate to issue him a GOMOR for that incident almost 3 years after it occurred.  Clearly, his chain of command did not believe that incident warranted any disciplinary of administrative action against him, since none was undertaken and he received an Above Center of Mass rating on his next OER.
13.  In a letter, dated 13 April 2006, the applicant's Board of Inquiry counsel requested the GOMOR be rescinded or at the very least that it not be filed on the applicant's OMPF.

14.  On 14 April 2006, the applicant's battalion commander recommended the GOMOR be permanently filed in the applicant's OMPF.  

15.  On 3 May 2006, the applicant's commander, a general officer, approved the permanent filing of the GOMOR in the applicant's OMPF.

16.  The applicant was honorably retired in the rank of MAJ on 31 August 2011. He was credited with completing 21 years, 3 months, and 26 days of active service.

17.  In a memorandum, dated 18 April 2011, the applicant's former executive officer (XO) requested the applicant's GOMOR be removed from his OMPF.  The individual stated:

   a.  She was the applicant's XO at the time of the administrative proceedings and receipt of the GOMOR.  During that period she repeatedly raised her concerns over due process and fairness with the group JAG, battalion commander, and group commander.  The entire process languished for nearly a year in an apparent effort to "wear the accused down" and reflect the negative and antagonistic command climate of the organization.
   
   b.  The Board of Inquiry found the applicant fit to be retained in military service.  Of the four charges, evidence only supported two.  The applicant had in fact committed personal misconduct and conduct unbecoming an officer.  However, there was insufficient evidence to support a finding that he was an alcohol rehabilitation failure or that he had failed to complete the IOQC because of his misconduct.
   
   c.  When the GOMOR was given to her to present to the applicant in April 2006 she challenged Captain (CPT) Sxxxxxx, (Group JAG).  She argued that "the applicant was not in fact a rehabilitation failure…and the Board had not found him to be one."  CPT Sxxxxxx instructed her to "reread the GOMOR carefully…it doesn't say the board found him a rehabilitation failure…but LTC Rxxxx (Battalion Commander),  determined it and COL Txxxx (Group Commander) agrees."
   
   d.  The inaccuracies and misleading statements, the timeliness, and the motivation behind the GOMOR warrant its removal from the official file of the applicant.
18.  Army Regulation 600-37 provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that:

	a.  Unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

	b.  A GOMOR, regardless of issuing authority, may be filed in the OMPF only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Once an official document has been properly filed on 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.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  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.

19.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 

20.  Army Regulation 15-185 provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  Paragraph 2-4 states applicants must file an application within 3 years after an alleged error or injustice is discovered or reasonably should have been discovered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  The evidence of record shows the applicant was counseled on 6 July 2005 for failure to report to the IOC and subsequently being found intoxicated in his BOQ.  He was directed to cease all consumption of alcohol, referred to participate in the ASAP immediately, his local clearance was suspended, and he was issued a FLAG based on his suspected misconduct. 

2.  On 22 October 2005, he was notified of the requirement to appear before a show cause proceeding because of substandard performance of duty, misconduct, and moral or professional dereliction.  He was also advised that his elimination was based on his failure to respond to alcohol problem rehabilitation, acts of personal misconduct, failure of a course at a service school because of misconduct, moral or professional dereliction, and conduct unbecoming an officer.  

3.  On 4 April 2006, a Board of Inquiry found insufficient evidence to support a finding that he was an alcohol rehabilitation failure or that he had failed to complete the IOQC because of his misconduct.  The board determined that he had committed personal misconduct and conduct unbecoming an officer.

4.  He was issued a GOMOR on 7 April 2006.  The GOMOR stated he was being reprimanded because his inability to conduct himself in an appropriate manner showed a lack of sound judgment and called into question his continued ability to serve as a commissioned officer.  The GOMOR also stated a Board of Inquiry had based its decision on his voluntary intoxication at the Miami International Airport, in a duty status, to such an extent that he passed out and need to be hospitalized.  The reprimand also stated his battalion commander consulted with ASAP Counselors and determined that he was an alcohol rehabilitation failure.   It was directed the GOMOR be permanently filed in his OMPF.

5.  Based on the evidence of record and documentation he submitted, he has not met the burden of proof in this case.  He has provided insufficient evidence to show that the GOMOR contained significant inaccuracies and was inappropriately filed in his OMPF.  The applicant admitted that his voluntary intoxication resulted in his injury to his knee and his hospitalization which prevented his attendance at the course.  His absence from the course, his designated place of duty, was therefore a direct result of his misconduct.  Although he was not formally charged with being AWOL, he in effect was AWOL. Despite the findings of the Board of Inquiry, the applicant's commander had determined he was a rehabilitation failure, which is a command determination.

6.  The evidence shows his due process rights were fully protected throughout the Board of Inquiry and he submitted a rebuttal.  It appears the applicant's battalion commander and commander believed that there was sufficient evidence to support the fact that he had committed acts of personal misconduct and was an alcohol rehabilitation failure regardless of the board's findings pertaining to this.

7.  It is concluded that he did not provide sufficient evidence or a convincing argument to support his request.  There is insufficient evidence to show the GOMOR was inaccurate, unjust, flawed, or improperly imposed.  Therefore, its removal from his OMPF is not appropriate.

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)                                         AR20110017803





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ABCMR Record of Proceedings (cont)                                         AR20110017803



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