IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120010302 


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 General Officer Memorandum of Reprimand (GOMOR), dated 11 September 2009, be removed from the performance portion of his Army Military Human Resources Record (AMHRR) or transferred to the restricted portion of his AMHRR.  

2.  He states:

	a.  General T----- issued him the GOMOR on 11 September 2009 and directed it be kept in his local personnel file for 3 years or until he was reassigned to another permanent station.

	b.  on 24 September 2010, General T----- directed the GOMOR be transferred to his AMHRR.

	c.  the Department of the Army Suitability Evaluation Board (DASEB) rendered a decision to deny the removal or transfer of the unfavorable information to the restricted portion of his AMHRR.  

	d.  the decision to transfer the GOMOR from his Military Personnel Records Jacket (MPRJ) to AMHRR is unjust and improper for several reasons.  

		(1)  Army Regulation 600-37 (Unfavorable Information) does not allow for refiling of a local GOMOR in an AMHRR.  The regulation prevents the transfer by stating that once a commander decides where to file his decision will be final and by placing limitations on use of a GOMOR once it has been filed locally.  
		(2)  the transfer of the GOMOR was inherently unfair because it was not based on any new information concerning his conduct, but it was based on the commander's change of mind.  This is an inequitable reason for the increased punishment which could be justified only by new information concerning his conduct. 

		(3)  to allow a commander to transfer a GOMOR in this case a year later and not based on any new information degrades the confidence and reliance that Soldiers can place in the decisions of their commanders.  This should not be allowed.  

3.  He provides:

* DASEB Record of Proceedings
* Removal of GOMOR memorandum
* GOMOR memorandum and rebuttal
* Memorandum of support

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of captain (CPT)/O-3.  

2.  On 11 May 2007, he was appointed as a Reserve commissioned officer in the rank of second lieutenant with a concurrent call to active duty.  

3.  He was promoted to first lieutenant on 1 January 2009.

4.  On 11 September 2009, he received a GOMOR for dereliction of duty and exercising extraordinarily poor judgment while serving as a platoon leader in Troop A, 4th Squadron, 7th Cavalry Regiment, 1st Heavy Brigade Combat Team, 2nd Infantry Division.  The commanding general (CG) of the 2nd Infantry Division stated a military police investigation established that, during the applicant's tenure as a platoon leader, he was aware that noncommissioned officers in his platoon were routinely hazing and assaulting junior Soldiers, but he took no steps to stop the illegal behavior or even report it to his superiors.  The CG also stated the applicant's inaction allowed such incidents to occur repeatedly over a period of several months.  

5.  The GOMOR was imposed as an administrative reprimand pursuant to Army Regulation 600-37 and was not punishment under Article 15, Uniform Code of Military Justice (UCMJ).  The CG informed the applicant the GOMOR could be filed in his AMHRR in accordance with Army Regulation 600-37, paragraph 3-4b.  
6.  On 14 October 2009, the applicant acknowledged receipt of the GOMOR and he elected to submit statements in his behalf.  He stated:

	a.  he was fully aware and understood ignorance was not an excuse in any circumstance.  He stated he understood that any actions taken by Soldiers under his command would be his full responsibility and a reflection of his leadership.

	b.  he took full responsibility for his lapse in moral courage regarding the unlawful and unethical situation that took place in his platoon.  He stated he could have avoided the situation entirely by imparting the ethical principles he learned from his family and commissioning source.

	c.  he has learned first-hand about how to effectively supervise and provide a positive command environment to avoid this kind of situation.  He requested the GOMOR be placed in his MPRJ because his mistakes were honest and were a product of sincere but misguided efforts.  

7.  His chain of command recommended the GOMOR be filed in his local personnel file.

8.  On 6 November 2009, the CG directed the GOMOR, along with supporting documents, be filed in the applicant's local personnel file for a period of three years or until his reassignment to another general court-martial jurisdiction, whichever occurred first, in accordance with Army Regulation 600-37, paragraph 3-4a.  

9.  He was promoted to CPT on 1 August 2010.

10.  In a 20 August 2010 memorandum, the CG stated given the serious nature of the applicant's misconduct, he was reconsidering his filing determination for the GOMOR to be filed in the applicant's local personnel file.  The CG stated prior to making his decision, he would consider any matters the applicant presents to him.  

11.  On 1 September 2010, the applicant submitted statements in his own behalf.  He stated:

	a.  he was immature and lacked the experience at the time to properly deal with the incident.  As he has matured, he realized there were better ways he could have dealt with the situation.  

	b.  he regretted this unlawful and unethical situation to take place during the time he was the platoon leader.  
	c.  he fully cooperated with the process and did not impose any sort of friction or cause problems during the investigations and multiple court trials.  

	d.  during the time between the CG's decision to file the GOMOR in his local personnel file and his reconsideration to file the GOMOR in his AMHRR, he has carried on with his duties and had not been in the slightest trouble or caused any sort of problems.  He stated he was promoted and had received excellent Officer Evaluation Reports (OER) during that time period.

12.  In an 8 September 2010 memorandum, Trial Defense Counsel stated it was not legally permissible under the applicable Army Regulation to reconsider the filing determination of a locally filed GOMOR.  

13.  On 24 September 2010, the CG directed the GOMOR and supporting documents be filed in the applicant's AMHRR.

14.  A review of the applicant's military records in the Interactive Personnel Electronic Records Management System revealed the GOMOR and allied documents were filed on the performance portion of the applicant's AMHRR.

15.  On 29 October 2010, a brigadier general, Director for Manpower and Personnel, the Joint Staff, forwarded a letter of recommendation to the CG of the 2nd Infantry Division.  The brigadier general stated:

   a.  he selected the applicant as his aide-de-camp based on a scrub of officer record briefs, evaluation reports, and the recommendations of the applicant's troop and brigade commanders.  
   
   b.  the applicant performed at or above his expectations for approximately 45 days as his aide-de-camp.  He would have retained the applicant as his 
aide-de-camp and rated him superior in all areas, but he was informed the applicant was associated with the hazing incident and under investigation.  

	c.  he acknowledged he doesn't know all the facts in the case.  However, he requests the CG take into consideration the command climate and the applicant's relative inexperience.  

16.  On 4 April 2011, the DASEB denied removal and transfer of the applicant's GOMOR.  



17.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the AMHRR, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the AMHRR 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 Army Board for Correction of Military Records (ABCMR), the DASEB, Army Appeals Board, Chief of Appeals and Corrections Branch of the U.S. Army Human Resources Command, the AMHRR custodian when documents have been improperly filed, Human Resources Command, as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

18.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Chapter 3 covers unfavorable information in official personnel files.  

   a.  Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files.  
   
b.  Paragraph 3-4a(2) states the authority to issue and direct the filing of such 
letters in the MPRJ of commissioned officers and warrant officers is restricted to any general officer (to include one frocked to the rank of brigadier general) who is senior to the recipient or an officer who exercises general court-martial jurisdiction over the recipient.  A letter designated for filing in the MPRJ only may be filed for a period not to exceed 3 years or until reassignment of the recipient to another general court-martial jurisdiction, whichever is sooner. Such a letter will state the length of time it is to remain in the MPRJ.  

   c.  Paragraph 3-4(b) states that a letter, regardless of the issuing authority, 
may be filed in the AMHRR maintained by the U.S. Army Human Resources Command, the Army Reserve Personnel Command, or the proper State Adjutant General (for Army National Guard Personnel) only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the AMHRR will be filed on the performance portion (P-portion).  The direction for filing in the AMHRR will be contained in an endorsement or addendum to the letter.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will 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.  Appeals submitted under this provision will normally be returned without action unless at least one year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a GOMOR on 11 September 2009 for dereliction of duty and exercising extraordinarily poor judgment while serving as a platoon leader in Troop A, 4th Squadron, 7th Cavalry Regiment, 1st Heavy Brigade Combat Team, 2nd Infantry Division.  

2.  On 6 November 2010, the imposing authority directed the GOMOR and allied documents be filed in the applicant's local personnel file for a period of three years or until his reassignment to another general court-martial jurisdiction. 

3.  The applicant contends the decision to transfer the GOMOR from MPRJ to AMHRR is unjust and improper.  However, the governing regulation (Army Regulation 600-37) for filing letters of reprimand does not indicate a general officer is not allowed to reconsider directing the refiling of such letters from the MPRJ to AMHRR.  

4.  The evidence of record shows the CG directed the GOMOR and allied documents to be filed on the applicant's performance portion of his AMHRR in accordance with applicable regulations after the applicant was provided the opportunity to rebut the proposed action.  The CG made this final determination of filing the GOMOR in the applicants' AMHRR at his own discretion.  

5.  The GOMOR was properly imposed against the applicant; therefore, it is believed that due to the short period of time that has passed it is not evident that the GOMOR has met its intended purpose.  The evidence presented was insufficient to warrant the request for removal or of the transfer of the GOMOR to the restricted portion of the AMHRR.  There is no evidence of an error or injustice.  

6.  The evidence of record shows the applicant applied to the DASEB for removal or transfer of the GOMOR and his request was denied.  

7.  His service record is void of evidence and he has not provided compelling evidence to indicate his GOMOR was improperly filed.  Therefore, there is no basis for granting his request.  



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)                                         AR20120010302





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ABCMR Record of Proceedings (cont)                                         AR20120010302



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