IN THE CASE OF:	  

		BOARD DATE:  9 February 2012

		DOCKET NUMBER:  AR20110023507 


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 a General Officer Memorandum of Reprimand (GOMOR), dated 16 June 2009, be transferred from the performance (P) to the restricted (R) portion of his Official Military Personnel File (OMPF).  He also requests that an Academic Evaluation Report (AER) that he received be completely expunged from his record.  

2.  The applicant states, in effect, his past performance and otherwise unblemished record demonstrates the high regard he holds for Army values and service.  He claims his awards, accomplishments, and performance evaluations demonstrate he has exceeded expectations of the challenges posed against him with the imposition of the GOMOR in the P portion of his OMPF.  For these reasons coupled with his performance subsequent to the issuance of the GOMOR, the preponderance of the evidence supports that he has placed the needs and interests of the Army before his own despite the incident involving poor judgment over 3 years ago.  He respectfully requests that the Army Board for Correction of Military Records (ABCMR) approve his request to transfer the GOMOR and associated documents to the R portion of his OMPF and that the AER that mentions the incident be completely expunged from his record.  

3.  The applicant further states the ABCMR should consider his request from a holistic perspective, as the review of his career will show, in effect, his character has improved as a result of the lessons intended by the reprimand.  He can truthfully say that the amount of time, guilt, and personal humiliation he brought upon his family and himself, coupled with the huge sense of disappointment he brought to his subordinates, peers, and supervisors have led him to have no further disciplinary actions.

4.  The applicant finally states he is not ashamed to admit his mistakes and apply it in the counsel of others as necessary.  He has never wavered in his responsibility as an Army officer.  He has demonstrated continuous sound judgment and held an exceptionally high level of personal and professional commitment to the Army. 

5.  The applicant provides a self-authored statement and Department of the Army Suitability Evaluation Board (DASEB) appeal packet that includes the following documents in support of his application:

* Officer Evaluation Reports (OER) (9), dated between 15 November 2004 and 17 June 2011
* Non-chain of Command Letters of Support (11)
* GOMOR Filing Decision Packet
* AERs, dated 15 December 2007, 16 November 2004, and 7 January 2009
* Letters of Commendation (2), dated in 2010 and 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant included in his application a request for removal of a properly filed AER from his record; however, there is no indication that he has exhausted all administrative remedies available concerning this matter by appealing the AER to the Army Special Review Board which is required prior to consideration of this issue by this Board.  As a result, this issue will not be addressed further in this Record of Proceedings.  

2.  The applicant's military records show he was commissioned a second lieutenant in the Regular Army on 10 May 2003.  It further shows he was promoted to the rank of first lieutenant on 30 November 2004 and to the rank of captain on 1 July 2006.  At the time of his application to this Board, he was serving in an active duty status in Korea in the rank of captain.  

3.  On 8 May 2009, the applicant was apprehended by Richmond County, Georgia, authorities for operating a motor vehicle (driving) while under the influence of alcohol (DUI).  A breathalyzer test was administered and the reading was .143 percent blood alcohol content.



4.  On 16 June 2009, the acting commander of the U.S. Army Signal Center (USASC), Fort Gordon, Georgia, issued the applicant an official GOMOR for his misconduct (DUI) on 8 May 2009.  The commander noted that by his DUI, the applicant posed a threat to the safety of the community and his misconduct showed not only contempt for the law, but also callous disregard for the safety of others.  He further indicated it was only through sheer good fortune that the applicant’s misconduct did not result in tragedy.

5.  On 16 July 2009, the applicant acknowledged receipt of the GOMOR and indicated he would submit matters for consideration and a response to the GOMOR.  In his response he stated he took responsibility for his actions and that he was just fortunate his reckless and high-risk decision did not result in an accident and potentially hurting himself or others.  He indicated he was ashamed and embarrassed about his poor judgment and that he regretted his subsequent actions.  He further indicated he enrolled in the Army Substance Abuse Program as the beginning of his rehabilitation.  He further stated that the Army had invested in him through both a fully-funded undergraduate degree and fully-funded graduate degree, and he knew he could still give back honorably to the Army.  He further indicated he had a solid record of strong performance prior to this incident, and he was committed and dedicated to becoming a better person and greater leader as a result of the lessons he had learned from this decision.  He concluded by stating he truly hoped his military career would not be ruined and that he had a solid career as a Soldier, because he had learned tremendously from his mistake.  

6.  On 7 July 2009, after considering all matters submitted by the applicant, the commanding general (CG) USASC and Fort Gordon, forwarded the GOMOR for filing in his OMPF.

7.  On 7 December 2010, the applicant petitioned the DASEB to have the GOMOR transferred to the R portion of his OMPF.  The applicant based his appeal on the fact that the intent of the GOMOR had been served.  

8.  On 11 February 2011, after carefully considering the evidence the applicant submitted it was determined that substantial evidence had not been provided to show the GOMOR had served its intended purpose and that it should not be transferred to the R portion of the OMPF.  The DASEB unanimously voted not to grant relief.  



9.  The applicant provides essentially the same appeal packet he submitted to the DASEB to this Board.  This includes three OERs issued subsequent to the issue of the GOMOR in 2009, 2010 and 2011.  In all of these reports he was evaluated as best qualified and received positive comments on his performance and conduct.  He also provides nine letters of support from superiors, peers and subordinates which all attest to his outstanding performance since the incident that led to the GOMOR and support his request to transfer the GOMOR to the
R portion of the OMPF.  

10.  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.

11.  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.

12.  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 request to transfer the GOMOR in question to the R portion of his OMPF has been carefully considered.  However, there is insufficient evidence to support his request.  
2.  In this case, the GOMOR reveals a serious incident of misconduct on the part of the applicant.  This incident could have resulted in more serious and tragic events had the applicant not been apprehended by local authorities for DUI.  

3.  While it is clear the applicant’s performance has been outstanding since the incident, given the misconduct occurred while he was serving in his current grade and at his current level of responsibility, it is not clear the intended purpose of the GOMOR has been served.  Therefore, absent any error or injustice related to the imposition of the GOMOR, it would not be appropriate for this Board to substitute its judgment for that of the DASEB based on the same set of facts and circumstances submitted in the appeal.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

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)                                         AR20110023507



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ABCMR Record of Proceedings (cont)                                         AR20110023507



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