IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120009107 


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 correction of his Official Military Personnel File (OMPF) (now known as Army Military Human Resource Record (AMHRR)) by:

	a.  setting aside and removing the general officer memorandum of reprimand (GOMOR), dated 6 January 2011, from his AMHRR; 

	b.  setting aside his removal from the 2010 Sergeant Major (SGM) Promotion List; and

   c.  promoting him to the rank/grade of SGM/E-9 with the appropriate retroactive date of rank (DOR).

2.  The applicant states the record is unjust because the GOMOR he received referred to an alleged theft despite a lack of proof that he committed such a theft.  He repeatedly requested his chain of command investigate the allegations which led to the GOMOR, but his requests were denied.  By issuing a GOMOR instead of preferring charges, he was denied his due process rights and effectively punished without allowing him to present evidence of his innocence.  

3.  The applicant provides a detailed binder and compact disk which contain the GOMOR and associated documents, self-authored statements, military police reports, U.S. Forensics report, noncommissioned officer evaluation reports (NCOERs), enlisted record brief, and various letters, electronic mail (Email) and correspondence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists Counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army master sergeant.  

2.  On 6 January 2011, the applicant was reprimanded by the Commanding General (CG), Special Operations Command, MacDill Air Force Base, FL, for taking six carabiners from the Post Exchange, Camp Liberty East, Baghdad, Iraq while in a combat zone and assigned to the Combined Joint Special Operations Task Force – Arabian Peninsula.  The applicant was observed on surveillance video taking the carabiners and concealing them on his uniform and placing them in his pocket.  

3.  On 6 January 2011, the applicant acknowledged receipt of the GOMOR and elected to submit a statement on his own behalf.  

4.  On 10 January 2011, the applicant submitted his rebuttal to the GOMOR.  In his rebuttal the applicant apologized for the embarrassment the situation caused and the time and energy expended on dealing with the situation.  The applicant took responsibility for the situation; however, he also expressed concern with  major inconsistencies in the investigation of the number of caribiners which were allegedly shoplifted (went from one to two to three to finally the six mentioned in the GOMOR) and why a manager did not have someone stop him at the moment he was leaving the store.  He requested the CG consider his entire military career when determining whether or not to file the GOMOR in his AMHRR and asked for the opportunity to redeem himself by having the GOMOR placed in his local file.

5.  On 19 January 2011, after reviewing the matters submitted by the applicant and the recommendations from his chain of command, the CG directed the GOMOR be filed in the applicant's AMHRR.

6.  The GOMOR is filed in the performance section of the applicant's AMHRR.

7.  In a 13 July 2011 memorandum, the Chief, Enlisted Promotions Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY, indicated that the applicant's name was removed from the FY10 SGM Promotion Selection List by a Standby Advisory Board which convened on 7 June 2011.

8.  The applicant's record contains a memorandum from the Chief, Transition Branch, HRC, which notified him that a Qualitative Management Program Selection Board conducted a comprehensive review of his records and recommended he be denied continued active duty service.  As a result, the Director of Military Personnel Management approved the board's recommendation and directed the applicant be involuntarily discharged from the Army not later than 1 July 2012.

9.  On 26 November 2012, the applicant was honorably retired.  The narrative reason for his separation is "Disability, Temporary (Enhanced)."  The applicant served 26 years, 6 months, and 8 days of active service with no time lost.

10.  The applicant provided the following evidence in support of his request:

   a.  A memorandum written by the applicant to the Commander, Special Operations Command, dated 6 April 2011, requesting reconsideration to remove the GOMOR from his AMHRR, have his rank reinstated, and reimburse him for back pay from January 2011.  
   
   b.  A memorandum in support of the applicant's request for reconsideration written by CPT E---- B. C---------, Defense Counsel, to the Commander, Special Operations Command, dated 6 April 2011, requesting removal of the GOMOR in order to allow the applicant to confront the charges at court-martial. 
   
   c.  A one-page summary report and video from U.S. Forensics which states the video “begins with the applicant in position.”  The report states, "what happened prior to the time and how long the subject [applicant] was at the position of the place in question is unknown, as the video starts with the subject [applicant] with items in hand." 
   
   d.  NCOERs from throughout his career and unsigned memoranda requesting a commander's inquiry be initiated with regard to his NCOER for the period       10 July 2010 through 13 January 2011.
   
   e.  Numerous pages of Email and letter correspondence requesting assistance from defense counsel and a Member of Congress. 
   
   f.  Memoranda pertaining to the applicant's request of a Complaint of Wrong, Article 138, Uniform Code of Military Justice (UCMJ).  The wrongs which are the subject of the complaint include the applicant's relief as the SGM of the Special Operations Iraqi Transmit Team on 27 November 2010 and his removal from the Command Sergeant Major promotion list on 28 December 2010.
   
   g.  A journal containing a timeline of events.
   
   h.  A compact disk containing video.

11.  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.

12.  A memorandum of reprimand may be filed in a Soldier's AMHRR 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 AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Paragraph 7-2 provides that once an official document has been properly filed in the AMHRR, 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 AMHRR.

13.  Army Regulation 600-8-104 (AMHR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 states a memorandum of reprimand is filed in the performance section of the AMHRR unless directed otherwise by an appropriate authority (Department of the Army Suitability Evaluation Board or Army Board for Correction of Military Records). 

14.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides, in pertinent part, that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR for taking six carabiners from the Post Exchange, Camp Liberty East, Baghdad, Iraq while in a combat zone and assigned to the Combined Joint Special Operations Task Force – Arabian Peninsula, and that it was filed in his AMHRR.  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.  The applicant's response was received and considered.  His intermediate 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 AMHRR.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his AMHRR.  There is no evidence of an error or an injustice.

2.  The applicant's contention that he was denied due process by receiving an administrative GOMOR is not true.  Pursuant to Army Regulation 27-10, commanders should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  There is no requirement for commanders to resort to NJP under the UCMJ in lieu of pursuing nonpunitive administrative action.

3.  The applicant was a senior noncommissioned officer in a position of trust and authority.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  Here, the applicant violated that trust.  The applicant appears to contend the U.S. Forensics report exonerates him from any wrongdoing; however, the report states, "what happened prior to the time and how long the subject [applicant] was at the position of the place in question is unknown, as the video starts with the subject [applicant] with items in hand."  The video evidence is wholly inconclusive.  The GOMOR is correctly filed and the applicant has not proven the GOMOR to be either untrue or unjust.

4.  To the contrary, in his rebuttal to the GOMOR the applicant did not deny that he took anything.  His only points of contention were that the number of carabiners he “allegedly shoplifted” went from one to two to three to finally six
and why a manager did not have someone stop him at the moment he was leaving the store.

5.  In view of the foregoing, there is an insufficient evidentiary basis to remove the contested GOMOR from his AMHRR, set aside his removal from the 2010 Sergeant Major Promotion List, or to promote him to the rank/grade of SGM/E-9 with an appropriate retroactive DOR.

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)                                         AR20120009107



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ABCMR Record of Proceedings (cont)                                         AR20120009107



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