IN THE CASE OF:	  

		BOARD DATE:	    17 May 2012

		DOCKET NUMBER:  AR20120004979 

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 the removal of a general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF).  In the alternative, he requests the GOMOR be transferred from the performance section to the restricted section of his OMPF.

2.  He states:

	a.  The GOMOR is untrue because he did not cheat on an examination while in Aviation school.  Having forgotten his eye-glasses, he simply squinted while attempting to look at authorized visual aids.  Despite the spacing between the desks, the proctor moved him to the front desk because he thought the applicant was cheating.

	b.  The GOMOR is unjust because of the inconsistencies between the battalion and brigade commanders' recommendations with respect to its filing.  The battalion commander stated he was not convinced that he (the applicant) had cheated whereas the brigade commander stated that he (the applicant) had been eliminated from the course and that they (the battalion and brigade commanders) had both heard his story and agreed that he cheated. 

	c.  The GOMOR was given in August 2010.  His performance has since been outstanding.  His rating officials did not mention this incident in his officer evaluation report (OER) because it did not change their assessment of his potential.

	d.  He previously served in an enlisted capacity during which he completed various training courses and received multiple awards.  If the GOMOR is not removed or transferred, it will have a negative impact on his promotion to the next higher grade. 

3.  He provides:

* Contested GOMOR
* Chain of command's recommendations
* Letter from a legal assistance attorney

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Army National Guard (ARNG) as a tactical automated fire control systems specialist, with active duty service in support of current contingency operations, the applicant was appointed as a second lieutenant in the Puerto Rico (PR) ARNG and executed an oath of office on 8 January 2008. 

2.  He attended the Aviation Basic Officer Leadership Course at Fort Rucker, AL, from 27 October to 17 November 2008.  

3.  On 5 August 2010, the Commanding General (CG), U.S. Army Aviation Center of Excellence, Fort Rucker, AL, reprimanded the applicant for an honor code violation.  The GOMOR states that while taking the UH-60 Part I academic examination on 24 May 2010, three proctors witnessed him blatantly staring at the exam of a nearby student several times.  One of the proctors asked him to move to the front row where no other students' examination would be visible to him.  He answered the first seven questions of the exam correctly but missed
22 of the remaining 43 questions.  His conduct demonstrated a complete lack of regard for Army values.  The GOMOR concluded that leaders set standards, not cheat them, and leaders without integrity are not fit to serve.  

4.  On 5 August 2010, after acknowledging receipt, he submitted a rebuttal wherein he stated:

* He was falsely accused of cheating when he was in fact squinting at authorized visual aids
* One of the instructors tapped on his desk and told him to move to the front row which made him very nervous 
* He had trouble concentrating on his exam as a result and he did not do as well as he intended
* He would not place his reputation in a compromising position; he has lived his entire career with high standards
* He had been eliminated from flight school and had been re-branched
* He appealed to the CG to place the GOMOR in the local file

5.  On 13 August 2010, his battalion commander recommended the GOMOR be filed in the local file for 3 years or until he was reassigned.  The battalion commander stated that the applicant had a serious language barrier and he has worked hard to overcome this barrier.  He added that "I am not convinced he cheated, local file and branch transfer." 

6.  On 15 August 2010, his brigade commander recommended the GOMOR be permanently filed in the applicant's OMPF.  The brigade commander stated that the applicant had been eliminated from the UH-60 course of instruction.  He added that "the battalion commander and brigade commander have heard his case and agreed that he was cheating" and "SM (service member) continues to claim innocence and fails to take responsibility for his actions." 

7.  On 17 August 2010, after carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant in defense, extenuating or mitigating, along with the recommendations of subordinate commanders, the CG ordered the GOMOR be placed permanently in the applicant's OMPF.  

8.  On 21 January 2011, the applicant was considered by a Department of the Army (DA) Board of Review for eliminations.  The board ordered his retention in the U.S. Army with reassignment.   His elimination action was closed. 

9.  On 19 January 2012, the DA Suitability Evaluation Board denied his petition to transfer the GOMOR to the restricted section of his OMPF.  

10.  He submits a memorandum, dated 1 March 2012, from a legal assistance attorney who recommends an expedited review of the applicant's case for potential removal or transfer.  

11.  The GOMOR is currently filed in the performance portion of the applicant's OMPF.

12.  Army Regulation 600-37 (Unfavorable Information) 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 a filing determination is made.

13.  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 chapter 7 of Army Regulation 600-37.  Paragraph 7-2 (Policies and standards) provides 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 states that administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the OMPF.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant violated the honor code in that while taking the UH-60 Part I academic examination on 24 May 2010, three proctors witnessed him blatantly staring at the exam of a nearby student several times.  One of the proctors asked him to move to the front row where no other students' examination would be visible to him.  He answered the first seven questions of the exam correctly but missed 22 of the remaining 43 questions.  

2.  Accordingly, he received a GOMOR.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  His battalion and brigade commanders provided 

their recommendations and after carefully considering the circumstances surrounding the incident, and all matters submitted by the applicant, along with the recommendations of subordinate commanders, the CG ordered the GOMOR be placed permanently in the applicant's OMPF.  

3.  The imposing officer was not bound by the recommendations of the battalion and/or brigade commanders.  Additionally, the omission of this GOMOR from his OER and the decision by DA Board of Review to retain him, have no bearing on the filing of this GOMOR.  The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate.  Once the GOMOR was filed on his OMPF, it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, such as this Board.

4.  When the CG reprimanded him, he had the option to file the GOMOR in the local file, the performance section of the OMPF, or the restricted section of the OMPF.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant was a commissioned officer with several years of prior enlisted service.  He violated the honor code.  As such, the GOMOR was correctly filed in the performance section of his OMPF.  He has not proven this GOMOR to be either untrue or unjust.  Therefore, there is no reason to remove it from his OMPF.

5.  Additionally, a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  The applicant continues to argue that he did not violate the honor code.  He has not proven through performance that he fully understands the significance of his poor judgment.  His attitude, which is normally recognized as a major ingredient in the success or achievement of an individual, is that of an officer who blames his set-back on others.  It is clear that the GOMOR has not served its purpose and as such, there is no reason to transfer it to the restricted section of his OMPF.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120004979



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120004979



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1