IN THE CASE OF:	  

		BOARD DATE:	 20 September 2012 

		DOCKET NUMBER:  AR20120012366


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) from his Army Military Human Resources Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states he was never convicted of the charge of driving under the influence (DUI) which was the catalyst for his GOMOR.  He also attests that his immediate chain of command requested the GOMOR only be filed in his local personnel file.  He acknowledges his past mistake, but does not believe it should stop his career progression.  It has been 6 years since the incident and he has received nothing but excellent Officer Evaluation Reports (OERs).  Along with his application, he has included a letter rendered by the commanding general (CG) who imposed the GOMOR.  The imposing CG expresses his desire for the GOMOR to be removed from his file.  The applicant concludes the GOMOR should be removed from his AMHRR based upon his performance both before and after the incident and particularly since he has support from the retired CG who imposed the GOMOR.

3.  The applicant provides the following documents in support of his request:

* five DA Forms 67-9 (OER)
* a letter of support from a retired CG




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is currently serving in the Regular Army as a chief warrant officer two (CW2) in military occupational specialty 152D (OH-58D Kiowa Warrior Pilot).  He was promoted to CW2, effective 2 February 2008.

3.  On 4 April 2006, Brigadier General E. J. S_______, Commander, U.S. Army Aviation Warfighting Center, Fort Rucker, AL, issued the applicant a GOMOR for DUI on 19 March 2006.

	a.  The GOMOR states the applicant violated Article 111 of the Uniform Code of Military Justice (UCMJ) by operating a motor vehicle while intoxicated.  He was reprimanded for his disreputable actions, lack of self-discipline, and poor judgment.

	b.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15, UCMJ.

4.  On 6 April 2006, the applicant acknowledged receipt of the GOMOR and indicated he intended to submit a response.

5.  On 11 April 2006, the applicant submitted a memorandum in rebuttal to the GOMOR.  He accepted responsibility for his actions and provided an explanation of circumstances surrounding the events that led to his offense.  He stated that he attended court 1 week early on this matter on the advice of the arresting officer who spoke with the local prosecutor about the case and the fact that the police report contained discrepancies and the breathalyzer had maintenance problems that week.  After talking with the arresting officer on the events of the incident, the prosecutor and judge declined prosecution and ordered him to pay a minimum court fee of $130.  He informed the CG that he was asking for no sympathy on this matter and reiterated that he had exercised poor judgment by driving after drinking.  He stated that he had served honorably thus far and he had shamed his organization with his recent poor decision.  He professed his dedication to his God, family, and Country.  He stated the Army was a big part of his life and he begged the CG to consider filing the reprimand in his local file along with his rebuttal rather than his AMHRR.  The applicant provided a copy of the Court Record, dated 3 April 2006, which shows his case was not prosecuted and he had remitted a $130 fine.

6.  On 17 April 2006, his company commander recommended the GOMOR be filed in his local unit file.  The company commander based this recommendation on the fact that the charges were dropped, he was not convicted of DUI, and he was an excellent Soldier who had worked very hard since the incident.  The applicant was about to complete the one-on-one Alcohol and Substance Abuse Program (ASAP) and the commander did not anticipate this ever being an issue again.  The commander also noted that at the brigade commander's direction, the applicant had taught a class on DUI to the Brigade Safety Counsel.

7.  On 19 April 2006, his battalion commander recommended the GOMOR be filed in his local unit file.  The battalion commander based this recommendation on the facts that the applicant had paid court and vehicle storage fees, the charges for DUI were dropped based on the arresting officer's recommendation to the judge, and his performance of assigned tasks had been good.  He had a very positive attitude and the ASAP staff recommended only 3 weeks of training after their initial interview with him.  The commander opined the incident resulted from a momentary lapse in judgment and that it would not occur again.  He noted the applicant was a very professional Soldier with 69 months of prior service.

8.  On 8 May 2006, his brigade commander recommended the GOMOR be filed in his AMHRR.  The brigade commander stated the applicant was an officer he would seriously consider giving a second chance; however, the Staff Judge Advocate was unable to confirm his claims in his rebuttal that the breathalyzer was faulty and the arresting officer did not recall making such a statement.  His unit reported his performance had been good and acknowledged his extra effort to demonstrate his potential since the incident.  When the applicant conducted a class on why not drink and drive, the brigade commander gained a favorable impression of him.  He added that, unfortunately, the applicant's rebuttal letter was not supported by law enforcement statements.

9.  On 9 February 2009, after considering the applicant's response, the CG directed the GOMOR be filed in the applicant's AMHRR.

10.  The GOMOR, dated 4 April 2006, referral document, the applicant's response, and filing directive are filed in the performance section of the applicant's AMHRR.

11.  In support of his application, the applicant provides:

	a.  Five OERs rendered for the period 2 December 2007 through 31 January 2012.  All five OERs show his respective raters held him in high regard in terms of both performance and potential.  Each of his raters opined his performance was outstanding and recommended that he be promoted to chief warrant officer three (CW3).  Each of his senior raters opined that his promotion potential to CW3 was among the best qualified.

	b.  A letter, dated 24 April 2012, and rendered by the retired CG who imposed the GOMOR stated the purpose of his letter was to request relief from a GOMOR on behalf of the applicant.  He stated he was the CG at the time of the incident and issued the GOMOR to the applicant.  He further stated his intent was never to allow that single occurrence to serve as a career ending event for the applicant.  He made a conscious decision to allow the applicant to complete aviation flight training with the hopes that he would overcome this setback and honorably serve the Army.  He added it is clear to him that the applicant learned from this event and based upon a personal review of his numerous OERs and his Officer Record Brief he believes the applicant is a dedicated and contributing member of the U.S. Army, fully deserving of the continued privilege to serve his country.  He further petitioned for transfer of the GOMOR and allied documents from the performance section to the restricted section of the applicant's AMHRR.

12.  Army Regulation 600-8-104 (Army Military Human Resources Records Management) provides policies, operating tasks, and steps governing the AMHRR.  This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three sections:  performance, service, or restricted.

	a.  Table 2-1 (Composition of the AMHRR) provides regulatory guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature.  It states the letter, referral correspondence, member's reply, and allied documents (if they are specifically directed for file by the letter or referral correspondence) will be filed in the performance section of the AMHRR.  All other allied documents not listed will be filed in the restricted section of the AMHRR.

	b.  Paragraph 2-3 (Composition of the AMHRR) provides that the restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, HRC, or the Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

13.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

   a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the AMHRR.
   
	b.  Paragraph 7-2 (Policies and Standards), subparagraph b (Appeals for Transfers of AMHRR Entries), contains guidance on transfers of AMHRR entries.  It states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the AMHRR.

		(1)  Appeals will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.  It also shows that appeals approved under this provision will result in transfer of the document from the performance section to the restricted section of the AMHRR.

		(2)  GOMOR's may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the GOMOR, referral document, the applicant's response, and filing directive are properly filed in the performance section of the applicant's AMHRR.

2.  The applicant's request for removal of the GOMOR from the performance section of his AMHRR was carefully considered and determined to have partial merit.  By regulation, if at least 1 year has elapsed since imposition, an appeal related to a GOMOR can be approved based on proof the GOMOR has served its intended purpose and that the transfer would be in the best interest of the Army.

	a.  The evidence of record shows the incident for which the GOMOR was issued was based on an isolated lapse in judgment on the part of the applicant over 6 years ago.  The applicant's professionalism, character, leader attributes, skills, and actions since the time of the incident, as documented by his OERs, show the applicant has learned and grown, both personally and professionally.

   b.  The applicant has provided evidence that charges on which the GOMOR was based were not prosecuted by civil court.

   c.  The applicant's company and battalion level commanders, who had firsthand knowledge of his daily duty performance, praised him and recommended the GOMOR be filed in his local unit file.  They offered their endorsement of the applicant's personal character and professionalism, attested to his worth and potential as an Army warrant officer, and advocated his continued service in the U.S. Army in positions of increasing responsibility.

	d.  The applicant's former CG, who imposed the GOMOR, provided a letter of support requesting the GOMOR be transferred to the restricted section of his AMHRR.  He stated it was never his intent to allow this single occurrence to serve as a career ending event for the applicant, but rather to give him an opportunity to overcome this setback and continue to honorably serve.  Further, the CG stated it is clear the applicant learned from this event and that he is a dedicated and contributing member of the Army.

	e.  Therefore, there is substantial evidence to conclude that the GOMOR has met the intent for which it was imposed and it would serve the best interest of the U.S. Army to partially grant the requested relief by transferring the GOMOR and all related documents to the restricted section of his AMHRR which might assure the U.S. Army the benefit of the applicant's continued service.

3.  In view of the facts of this case, it would be appropriate to correct the applicant's record to show the GOMOR, dated 4 April 2006, and all allied documents were transferred to the restricted section of his AMHRR.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the GOMOR, dated 4 April 2006, and all allied documents to the restricted section of his AMHRR, to include this Record of Proceedings and associated documents.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the GOMOR from his AMHRR.



      _______ _   __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)                                         AR20120005378



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ABCMR Record of Proceedings (cont)                                         AR20120012366



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