BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120002418 


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 a general officer memorandum of record (GOMOR) from the performance section to the restricted section of his official military personnel file (OMPF).

2.  The applicant states the GOMOR caused him to be removed from a key developmental position as an S-3, prevented him from being competitive for a nominative assignment, prevented him from filling a key assignment as an advisor, prevented him from returning to an assignment outside the continental United States, and has essentially relegated him to "filler" status for whatever jobs are left over.  Because of the GOMOR in his OMPF, his assignment preferences no longer figure into his assignments.  He states the GOMOR has served its intended purpose.

3.  The applicant provides:

* memorandum of appeal
* GOMOR
* U.S. Army Human Resources Command (HRC) initiation of elimination memorandum
* Department of the Army Suitability Evaluation Board (DASEB) decision memorandum
* four officer evaluation reports (OER)
* one academic evaluation report (AER)
* HRC closing of elimination memorandum
* eight letters of support

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the Army of the United States in the rank/pay grade of second lieutenant/O-1 on 17 May 1996.  He was promoted to the rank/pay grade of major (MAJ)/O-4 on 1 October 2004.

2.  On 7 November 2008, the applicant was issued a GOMOR by the Commanding General, Headquarters, 2d Infantry Division, Korea, for extraordinarily poor judgment and conduct unbecoming an officer.  Specifically, he was disorderly after a night of drinking at an off-post club on 11 October 2008 and directed abusive, profane language toward junior enlisted Soldiers and used racially-degrading language in the presence of junior enlisted Soldiers.  His failure to adhere to well-established policy was a violation of the respect, duty, trust, and confidence reposed in him by the command.  He embarrassed the command and the officer corps.  The Commanding General stated that the applicant's choosing to be drunk and disorderly caused him to question the applicant's decision-making process and his ability to lead.  Further, his use of racial epithets indicated that he possessed a severe character flaw.

3.  On 14 November 2008, the applicant responded to the GOMOR and stated he accepted full responsibility for his actions and sincerely apologized.  He acknowledged that he was disorderly after drinking and used abusive and profane language towards – and racially-degrading language in the presence of – junior enlisted Soldiers.  He stated he had served as an infantry officer for 12 1/ 2 years in a variety of leadership positions and strived to lead by example and live the Army values.  He requested the opportunity to redeem and repair his reputation and career.  He further requested that the GOMOR be filed locally, not in his OMPF.

4.  On 5 December 2008 after reviewing and considering the rebuttal matters submitted by the applicant, the Commanding General directed permanently filing the administrative reprimand in the applicant's OMPF.

5.  The applicant's OER for the period 24 June 2008 through 20 January 2009 shows he was serving as the battalion operations officer responsible for the health, welfare, and professional development of 30 officers, noncommissioned officers (NCO's), and junior enlisted Soldiers.  He received "yes" ratings in each of the Army values (honor, integrity, courage, loyalty, respect, selfless service, and duty).  His rater commented that he performed his professional duties in a solid manner and stated he exhibited potential for promotion.  His senior rater stated the applicant demonstrated he could continue to serve the U.S. Army and, with maturity and experience, had the potential to perform in the rank/pay grade of lieutenant colonel (LTC)/O-5.  He received a rating of "Best Qualified" for promotion potential to the next higher grade by his senior rater and a "Center of Mass" rating for potential compared with officers senior rated in the same grade.

6.  The applicant's OER for the period 21 January 2009 through 26 May 2009 shows he was serving as an operations officer for the current operations division of a forward-deployed Army service component command.  He received "yes" ratings in each of the Army values.  His rater commented that he performed his duties in an outstanding manner and stated he was in the top 50 percent of the 9 field grade officers he currently rated.  He stated the applicant immediately demonstrated his tremendous experience and competence during a training exercise and performed superbly as a shift battle MAJ.  His rater commented that the applicant was a tremendous officer who demonstrated the ability to perform at the next grade.  He stated, "This officer must be promoted to LTC.  I would fight to serve with him again."  His senior rater commented that the applicant performed his duties in a truly outstanding manner and displayed tremendous initiative.  He stated the applicant's "demonstrated performance and competence highlight his clear potential to serve at the next level.  Send to ILE [intermediate level education] and promote to the rank of LTC to best leverage his talents in service to our Army."  He received a rating of "Best Qualified" for promotion potential to the next higher grade by his senior rater and a "Center of Mass" rating for potential compared with officers senior rated in the same grade.

7.  On 29 January 2010, HRC notified the applicant of his identification for elimination because of misconduct – moral or professional dereliction – and directed him to show cause for retention on active duty.

8.  The applicant's OER for the period 27 May 2009 through 26 May 2010 shows he was serving as the assistant stability transition team leader of a two-man advisory team.  He received "yes" ratings in each of the Army values.  His rater commented that his performance was exemplary during this rating period.  He stated the applicant demonstrated a relentless warrior spirit by mentoring junior officers and NCO's in the conduct of combat operations.  His rater commented that the applicant's performance during the rating period was nothing short of outstanding and was a credit to the critical advising mission in Iraq.  He stated, "This officer possesses all the attributes, skill sets, and leadership traits of [an] LTC.  Must promote."  His intermediate rater stated that the applicant was "ready to work at the next level.  Send to ILE and promote at first opportunity."  His senior rater commented that the applicant demonstrated "outstanding performance by a top 20-percent MAJ, excelling in a complex environment….
Unlimited potential.  Send to ILE soonest and promote to LTC.  He will continue to excel."  He received a rating of "Best Qualified" for promotion potential to the next higher grade by his senior rater and a "Center of Mass" rating for potential compared with officers senior rated in the same grade.

9.  The applicant's OER for the period 27 May 2010 through 30 September 2010 shows he was serving as the stability transition team assistant team leader of a two-man advisory team.  He received "yes" ratings in each of the Army values.  His rater commented that the applicant's outstanding performance set the standard for the team.  He stated the applicant "has been the single most valuable officer on the team and made the greatest impact as an advisor…A leader by example and action; he is a role model for this advisory team and his Iraqi counterparts.  Unlimited potential for service at the highest levels.  Promote below the zone and select for battle command."  His intermediate rater stated the applicant was assigned one of the toughest jobs within the BOC [Baghdad Operations Command] and he achieved the highest results.  He further stated, "Tremendous potential; immediately select for promotion to LTC."  His senior rater commented that the applicant demonstrated "brilliant performance – [the applicant] ranks in the top 20 of 74 MAJ's I senior rate….Promote [the applicant] to LTC now.  He is a must select for LTC level command."  He received a rating of "Best Qualified" for promotion potential to the next higher grade by his senior rater and a "Center of Mass" rating for potential compared with officers senior rated in the same grade.

10.  On 27 October 2010 after careful consideration of the facts and evidence, the DASEB determined that there was insufficient evidence to justify removal or transfer of the unfavorable information to the restricted section of the applicant's OMPF.  The DASEB stated that the evidence did not provide substantial evidence that the document in question had served its intended purpose or that transfer would be in the best interest of the Army.  The DASEB specifically stated it did not appear that the applicant had been disadvantaged or deprived of any rights or privileges normally afforded to those officers who uphold the standards associated with the Army values and it was premature to transfer the GOMOR at that time without more evidence of a compelling nature to show the GOMOR had served its intended purpose.

11.  On 24 May 2011, HRC notified the applicant of his selection for retention on active duty and closure of the elimination action.  He was informed that the documents in his OMPF which were the basis of his requirement to show cause for retention could only be removed from his OMPF through an appeal to the DASEB.  He was advised that he could request consideration by the ABCMR after he exhausted his appeal to the DASEB if he still felt an error or injustice existed.

12.  The applicant's OMPF does not contain any documentary evidence relating to his consideration for promotion to LTC/O-5 or his selection/non-selection.

13.  The applicant provides eight letters in support of his request for transfer of the GOMOR to the restricted section of his OMPF.

	a.  In a letter, dated 10 January 2012, the applicant's former Department of Army Tactics instructor at the U.S. Army Command and General Staff College (CGSC) states he is aware of the GOMOR based on conversations with the applicant.  He states the applicant was without question the leader of the staff group and graduated in the top 20 percent of the class based on his performance and dedication.  He believes the GOMOR has served its intended purpose in that it resulted in the applicant's early removal from a key developmental position, his "Center of Mass" OER with weak performance and potential comments, initiation of elimination action, a personnel actions flag, failure to be considered for promotion to LTC below the zone, rescission of a nominative assignment, and limitation of a post-ILE assignment.  He states the GOMOR continues to punish the applicant for his misconduct by limiting his ability to serve in assignments that would further develop him as a leader and as an officer.  The applicant has made adjustments to his behavior, deployed to Iraq, was retained on active duty, graduated from CGSC, and volunteered to deploy to Afghanistan to demonstrate his worth to the Army.

	b.  In a letter, dated 14 January 2012, the applicant's former battalion commander at the United Nations Command Security Battalion-Joint Security Area states he is aware of the GOMOR based on conversations with the applicant.  He states he has known the applicant for over 6 years and his performance has always been impeccable.  He states he believes the GOMOR has served its intended purpose for the same exact reasons stated in the aforementioned letter from the applicant's former Department of Army Tactics instructor at CGSC.

	c.  In a letter, dated 16 January 2012, the applicant's former Department of Logistics and Resource Operations instructor at CGSC states he is aware of the GOMOR based on conversations with the applicant.  He states the applicant was extremely competent and professional at all times.  He states he believes the GOMOR has served its intended purpose for the same exact reasons stated in the aforementioned letter from the applicant's former Department of Army Tactics instructor at CGSC.  He further states the Army needs the applicant's skills and expertise to maintain our premier fighting force now and in the future.

	d.  In a letter, dated 17 January 2012, the applicant's former stability transition team leader states he is aware of the GOMOR based on conversations with the applicant.  He states he found the applicant's performance and expertise as a professional officer to be exemplary.  He states he believes the GOMOR has served its intended purpose for the same exact reasons stated in the aforementioned letter from the applicant's former Department of Army Tactics instructor at CGSC.  He further states he does not believe the incident that led to the GOMOR is indicative of the applicant from a whole person/officer perspective.

	e.  In a letter, dated 17 January 2012, the applicant's former chief of training and exercise states he is aware of the GOMOR based on conversations with the applicant.  He states the applicant performed magnificently during the period he worked directly for him.  He states he believes the GOMOR has served its intended purpose for the same exact reasons stated in the aforementioned letter from the applicant's former Department of Army Tactics instructor at CGSC.

	f.  In a letter, dated 18 January 2012, the applicant's former supervisor and chief advisor of the BOC states he is aware of the GOMOR based on conversations with the applicant.  He states the applicant's performance was exceptional.  He states he believes the GOMOR has served its intended purpose for the same exact reasons stated in the aforementioned letter from the applicant's former Department of Army Tactics instructor at CGSC.

	g.  In a letter, dated 25 January 2012, the applicant's former small group advisor and Department of Joint, Interagency and Multinational Operations instructor at CGSC states he is aware of the GOMOR based on conversations with the applicant.  He states the applicant's leadership was absolutely instrumental in setting the conditions for academic success in the classroom.  The applicant received a well-deserved top 20-percent designation based on his academic work.  He states he believes the GOMOR has served its intended purpose for the same exact reasons stated in the aforementioned letter from the applicant's former Department of Army Tactics instructor at CGSC.

	h.  In a letter, dated 27 January 2012, the applicant's former battalion commander at U.S. Army Troop Command-Korea states he is aware of the GOMOR based on conversations with the applicant.  He states he is uniquely qualified to render his observations of him in the performance of his duties as a company commander and his potential for continued service as his former battalion commander.  Not only did the applicant handle the high-pressure challenge, he excelled.  He states he believes the GOMOR has served its intended purpose for the same exact reasons stated in the aforementioned letter from the applicant's former Department of Army Tactics instructor at CGSC.

14.  In a memorandum to the ABCMR accompanying his application form, dated 27 January 2012, the applicant states the DASEB denied his request to transfer the GOMOR to his restricted file on 27 October 2010.  The DASEB determined that the GOMOR had not yet served its purpose.  He states the GOMOR has, in fact, served its purpose and it would be in the best interest of the Army for the GOMOR to be transferred.  He further states:

	a.  In October 2008, he became extremely drunk and disorderly at Camp Casey, Korea, used profane language, and used racially derogatory language.  He was properly reprimanded by the 2d Infantry Division Commanding General.  He accepted full responsibility for his actions then and continues to do so.  He sought counseling to overcome any problem he had.  As a result of the GOMOR, he has been alcohol free since November 2008.  He is sincerely remorseful for his actions and, to that end, the GOMOR has absolutely served its intended purpose.

	b.  He disagrees with the DASEB's conclusion that the show-cause board was not a consequence of the GOMOR but a natural consequence of his misconduct.

		(1)  The show-cause board was initiated by HRC based on the following specific reasons for elimination:

* series of substantiated derogatory activity resulting in a GOMOR, dated 7 November 2008, that was filed in his OMPF
* conduct unbecoming an officer as indicated by the above-referenced item

		(2)  HRC would not have been cognizant of the "substantiated derogatory activity" had the GOMOR not been filed in his OMPF.  Therefore, the show-cause board was the direct result of the GOMOR.

	c.  He was notified of HRC's elimination action in February 2010 while serving as an advisor in a four-star Iraqi Army headquarters.  He was not in a position to stop work and had to rely on a U.S. Army judge advocate general officer who was stationed on the west side of Baghdad.  The command attitude was that he should continue to work hard and not let the elimination action and pending show-cause board become a distraction.  The board recommended his retention by unanimous vote.  However, the elimination action was not closed by HRC until 24 May 2011 during which time he remained flagged.  None of this would have occurred had the GOMOR not been filed in his OMPF.  The fact remains that the show-cause board was a direct result of the GOMOR.  In this way, the GOMOR has served its intended purpose.

	d.  He was removed from a key developmental assignment as a result of the GOMOR and was prevented from completing the 12 months necessary for service as an S-3.  By being removed from a key developmental assignment, the GOMOR has served its intended purpose.

	e.  The offer of a nominative assignment was rescinded.  In the August/
September 2011 time frame, he was offered a joint assignment as a noncombatant evacuation operations planner for the United Nations Command (Korea).  Only top performers are selected to fill this type of position and joint duty is a key discriminator for promotion to brigadier general.  His assignment manager contacted him and rescinded the offer because of the GOMOR in his OMPF.  This was a significant and tangible way in which the GOMOR served its intended purpose.

	f.  His assignment following completion of the Command and General Staff Officer Course (CGSOC) is being delayed and he has not been offered career-enhancing assignments.  None of his other classmates are being delayed from follow-on assignments a full quarter beyond CGSOC graduation.  The GOMOR is clearly serving as a discriminator for future assignments and will continue to do so as long as it is filed in the performance section of his OMPF.  In this way, the GOMOR has served its intended purpose.

	g.  He served only 7 months as an S-3 following 11 months as a battalion executive officer.  By removing him early as a result of the GOMOR, he failed to meet the 24-month threshold for key developmental assignments and that puts him at a disadvantage with his peers in terms of total key developmental assignment time served.  He received an extremely weak OER for his rated time as an S-3.  He believes this was a result of the GOMOR, not his performance.  He served as an operations officer after being removed as the S-3 and he believes his performance would have been rated above the center of mass if not for the GOMOR.  He believes this is further indication that the GOMOR has served its intended purpose.

	h.  It would be in the best interest of the Army for the GOMOR to be transferred to the restricted section of his OMPF.  He sincerely wants to make a significant contribution to the service.  He has always actively sought the most difficult assignments at higher levels of responsibility.  He has received three strong OER's with ratings above the center of mass and an AER with a rating above the center of mass.  He deployed to Iraq and graduated from CGSOC.  He believes that he can overcome the OER's surrounding the GOMOR and be strongly competitive for promotion to LTC and command if the GOMOR is transferred to the restricted section of his OMPF.

15.  Army Regulation 600-37 (Unfavorable Information), paragraph 3-2, states that unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.  These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions.

16.  Army Regulation 600-37, paragraph 7-2, states that once a document has been directed for filing 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.

17.  Army Regulation 600-37 further states that administrative memoranda/letters of reprimand, admonition, or censure that are determined upon appeal to have served their intended purpose may be transferred from the performance to the restricted section of the OMPF when such 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.

18.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF.  It also prescribes the composition of the OMPF.  Paragraph 2-4 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.  Table 2-1 specifies that administrative letters/memoranda of reprimand, admonitions, and censures of a non-punitive nature will be filed in the performance section of the OMPF when commissioned or warrant officers are reprimanded by their immediate or higher commander; designated rater, intermediate rater, or senior rater; any general officer senior to the officers; or by the general courts-martial authority.  Administrative letters/memoranda of reprimand may be removed when the DASEB or ABCMR directs removal or transfer from the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR has served its intended purpose and his request for transfer of the GOMOR to the restricted section of his OMPF have been carefully considered and determined to have merit.

2.  On 7 November 2008, the applicant was issued a GOMOR by the Commanding General, Headquarters, 2d Infantry Division, for extraordinarily poor judgment and conduct unbecoming an officer.  The applicant was drunk and disorderly on 11 October 2008 and directed abusive, profane language toward junior enlisted Soldiers and used racially-degrading language in the presence of junior enlisted Soldiers.  His failure to adhere to well-established policy was a violation of the respect, duty, trust, and confidence reposed in him by the command causing the Commanding General to question the applicant's decision-making process and his ability to lead.  The Commanding General stated the applicant's use of racial epithets indicated that he possessed a severe character flaw.

3.  The applicant's three OER'S subsequent to receipt of the GOMOR show he has consistently received "yes" ratings in each of the Army values (honor, integrity, courage, loyalty, respect, selfless service, and duty).  His performance was described as outstanding, tremendous, exemplary, most valuable, and brilliant.  He has also consistently received ratings of "Best Qualified" for promotion potential to the next higher grade by his senior raters.

4.  The letters of support from his former CGSC instructors and supervisors all contend that the GOMOR has served its intended purpose in that it resulted in the applicant's early removal from a key developmental position, his "Center of Mass" OER with weak performance and potential comments, initiation of elimination action, a personnel actions flag, failure to be considered for promotion to LTC below the zone, rescission of a nominative assignment, and limitation of a post-ILE assignment.  One instructor further states the applicant has made adjustments to his behavior, deployed to Iraq, was retained on active duty, graduated from CGSC, and volunteered to deploy to Afghanistan to demonstrate his worth to the Army.

5.  The applicant's OER's, coupled with the recommendations from his CGSC instructors and supervisors, demonstrate clear evidence that the GOMOR has served its intended purpose.  As such, it would now be in the best interest of the Army to transfer the GOMOR from the performance to the restricted section of the applicant's OMPF.

BOARD VOTE:

__x___  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the GOMOR from Headquarters, 2d Infantry Division, dated 7 November 2008, and the corresponding DASEB decision memorandum, dated 27 October 2012, to the restricted section of the applicant's 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)                                         AR20120002418



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ABCMR Record of Proceedings (cont)                                         AR20120002418



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