IN THE CASE OF:	  

		BOARD DATE:	    3 July 2012

		DOCKET NUMBER:  AR20120008296 


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), dated 8 December 2010, from his Official Military Personnel File (OMPF).

2.  He states that the issuing GO failed to fully affirm the unfavorable information to be considered for filing in his OMPF as required by Army Regulation 600-37 (Unfavorable Information), paragraph 3-2a.  Factually stating that he committed the crimes he was accused of without being convicted by a court of law or military court-martial was a violation of his civil rights as it meets the definition of defamation of character using libel. 

	a.  He was questioned by a civilian investigating officer for allegedly violating a local Korean law.  The local prosecutor's office dropped the charges against him and forwarded a defamatory one-sided investigation against him to the Army, also factually stating that he had committed crimes he was charged with.  Without an investigation into the charges against him, the GO elected to generate a GOMOR.

	b.  On 19 January 2011, he responded to the GOMOR and pointed out the facts of the case as they were presented in the allied documents for the GOMOR.  Nothing within the allied documents of the civilian investigators' investigation was proof of the crimes he was charged with committing.  No credence was given to his statement and the GOMOR was directed to be filed in his OMPF.  The GO's decision to file the GOMOR in his OMPF is tantamount to defamation of his character because the GO could have elected to file the GOMOR locally where no third party could have viewed the document.  Filing the GOMOR in his OMPF allows third parties to view untrue and unsubstantiated derogatory statements about him.  

   c.  Had an investigation been conducted he would have provided evidence in his defense.  Evidence, such as the Standard Form (SF) 600 (Health Record - Chronological Record of Medical Care), which he has forwarded to the Board shows that he is physically incapable of performing the acts that he was accused of.  On 17 December 2007, he sought treatment for an adverse side effect that he was and still is having as a result of the medication he is currently taking.  He now finds himself having to prove that something did not happen rather than the GO or an accuser having to prove that it did happen.

3.  He provides an SF 600.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the Regular Army in the rank/grade of sergeant first class/E-7 at the time of his request.

2.  On 8 December 2010, the Commander, Headquarters, Eighth Army, reprimanded the applicant for making a false official statement and soliciting a prostitute.  The GOMOR states the applicant's deplorable behavior was a severe departure from the professional conduct he expected from a senior noncommissioned officer.  His actions undermined his ability to lead the Soldiers under his supervision.  This serious lack of good judgment and disregard for the laws of their host country would not be tolerated.  As a result of his misconduct, he had serious doubts about his ability to continue serving as a noncommissioned officer in the United States Army.

	a. The GOMOR was imposed as an administrative measure and not as punishment under Article15 of the UCMJ.

	b.  On 3 January 2011, the applicant acknowledged receipt of the GOMOR.  On 19 January 2011, he submitted a response to the GOMOR, which included his request that the GOMOR be rescinded, or in the alternative, filed locally.  He asked that the imposing authority in making his decision consider the applicant's 21 years of dedicated service, his distinguished service record, and the circumstances surrounding the incident in question.

		(1) He denied exhibiting improper behavior, resulting in a severe departure from professional conduct and negatively influencing good order and discipline: 1) making a false official statement, and 2) soliciting a prostitute.
      (2) He contended he did not at anytime answer wrongfully with the intent to lie or deceive. 

		(3) He found himself in the regrettable and unfortunate situation of being a victim of circumstance and pre-conceived stereotypes.  There was never anything but circumstantial evidence presented against him.

      (4) He requested the imposing authority also give credence to his unblemished 21 years of active duty service.  He had proudly served with honor and distinction, always striving and endeavoring to live the Army Values.  Included with his response he attached three of his most recent Noncommissioned Officer Evaluation Reports, four most recent awards received, and two character witness statements.  He stated he had served four combat rotations to the Middle East with the most recent being within months of reporting to Korea.
   
      (5) In conclusion, he requested that the imposing authority personally review the facts of the case and evidence presented in making his decision, and that he rescind the GOMOR, or in the alternative, choose to have it locally filed.  

	c.  His chain of command recommended filing the GOMOR in his OMPF.

	d.  On 9 February 2011, the imposing authority directed the GOMOR for filing in the applicant’s OMPF.

3.  The applicant submits an SF 600, dated 17 December 2007, showing he was prescribed Sertraline, 100 milligrams, per day.  This form also indicates he was informed that he could try Sildenafil (Viagra) to counter a decrease in his libido caused by Sertraline (Zoloft). 

4.  On 22 June 2011, the Department of the Army Suitability Evaluation Board denied his request to remove the GOMOR from his OMPF.

5.  Army Regulation 600-37 (Unfavorable Information) states 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.

   a.  Paragraph 3-2c states 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 that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others.  Other unfavorable character traits of a permanent nature should be similarly recorded.

   b.  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.
   
DISCUSSION AND CONCLUSIONS:
   
1.  The applicant contends the allegations addressed in the GOMOR are untrue.  In order to have a GOMOR removed from his OMPF, he must show with clear and convincing evidence that the GOMOR is untrue or unjust.

2.  Notwithstanding his implication that taking 100 milligrams of Sertraline per day rendered him incapable of performing any sexual acts with a woman, he was given the GOMOR for soliciting a prostitute not the performance of sexual act(s) with a prostitute.  Available evidence indicates the information contained in the GOMOR is accurate and that the GOMOR was properly imposed in compliance with applicable regulations and is properly filed in the applicant's OMPF.  He has not provided clear and convincing evidence the GOMOR was not true or is unjust or that the presumption of regularity should not be applied.

3.  The imposing authority was not bound by the Korean prosecutor’s findings in the applicant’s case.  The imposing authority has absolute discretion in managing the administration of a reprimand and may rely upon any relevant evidence when making a decision to issue an administrative GOMOR.  The evidence need not rise to the level required of "beyond a reasonable doubt."  The imposing authority relies on a preponderance of evidence, and in the applicant's case, the imposing authority believed the evidence merited the issuance of a GOMOR.

4.  While the character statements, Noncommissioned Officer Evaluation Reports, and awards he submitted to the imposing authority are noteworthy, they are not sufficient to mitigate the basis for the GOMOR.

5.  In view of the forgoing, there is an insufficient basis to remove the GOMOR from his OMPF.


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)                                         AR20120008296



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ABCMR Record of Proceedings (cont)                                         AR20120008296



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