IN THE CASE OF:	  

		BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20120013512 


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 transfer of a General Officer Memorandum of Reprimand (GOMOR) from the performance section to the restricted section of his Official Military Personnel File (OMPF).

2.  The applicant states that his request to the Department of the Army Suitability Evaluation Board (DASEB) to transfer the GOMOR was denied on 18 August 2011.  The DASEB stated that the evidence presented did not provide substantial evidence that the GOMOR has served its intended purpose and that the transfer would be in the best interest of the Army.

   a.  He states he was considered and not selected by both the Fiscal Year (FY) 2011 and FY 2012 Sergeant First Class (SFC) Promotion Boards.  He adds he was considered by FY 2011 in the secondary zone, but not selected despite having a very diverse career and always having been previously promoted as a "below the zone" Soldier.  In addition, at least ten of his peers and/or subordinates were promoted to SFC by the FY 2012 promotion board.

   b.  He was administratively released from the Special Warfare Center and School (SWCS) in September 2008 prior to the 11 October 2008 incident that led to the GOMOR.
   
   c.  He was reassigned to the 36th Area Support Medical Company (ASMC), Fort Bragg, NC in February 2009 and assigned as a squad leader rather than as a platoon sergeant despite the fact that he had more experience than the only other staff sergeant.  His efforts to implement improvements were rejected because he was not the platoon sergeant.
   
   d.  After 2 years he was allowed to return to the SWCS to continue training. However, because he had an alcohol-related offense, he could not return to the course until 2 years from the date the GOMOR was received (February 2009).

   e.  When he became eligible for the training he learned that the SWCS policy had changed and that he would have to complete the entire course, including the training he had previously completed.  He would also have to go back to Special Forces Assessment and Selection.

   f.  He was placed on orders for instructor duty at Fort Sam Houston, TX.  However, the Army regulatory guidance precludes a Soldier from assignment to instructor duty if they have a GOMOR or alcohol-related offense in their military service record.  As a result, the orders were revoked.  He was also ineligible for all the special duty assignments (i.e., instructor, recruiter, and drill sergeant duty) that were recommended for career progression.

   g.  He eventually turned his career around and was able to prove to his superiors that he could lead a platoon-size element into combat and successfully complete the mission.  He performed duties as platoon sergeant and he was in charge of a clinic as well as a field detention site that housed inmates.  He was also selected to fill in for the first sergeant for a period of 90 days.  Later, he became a detachment sergeant on the forward surgical team.
   
   h.  He sincerely regrets driving a car while intoxicated and he has learned his lesson.  He also recognizes that the command and Army have had to expend unnecessary resources in dealing with his misconduct.  He adds that it was the worst mistake he has ever made.

   i.  He states the GOMOR has had an adverse impact on his career by his assignment as squad leader, delay in SWCS training, ineligibility for instructor duty, and twice being a non-select for promotion.  The incident has changed his life dramatically and he would like the opportunity to fully pursue his Army career. He concludes that he believes the intended purpose of the GOMOR has been served and he respectfully requests the GOMOR be transferred to the restricted section of his OMPF.


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

* GOMOR and rebuttal
* reassignment and revocations orders
* five Noncommissioned Officer Evaluation Reports (NCOERs)
* two Academic Evaluation Reports (AERs)
* Enlisted Record Brief
* three letters of support

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the Regular Army as a staff sergeant (SSG) in military occupational specialty 68W (Healthcare Specialist). He was promoted to SSG effective 1 May 2008.

2.  On 1 December 2008, Major General T____ R. C____, Commander, U.S. Army John F. Kennedy SWCS, Fort Bragg, NC, issued a GOMOR to the applicant for, on 11 October 2008, driving while impaired, losing control of his vehicle, and running it into a ditch.

	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, inexcusable conduct, and poor judgment.

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

3.  On 5 January 2009, the applicant acknowledged receipt of the GOMOR and submitted his response.  He accepted responsibility for his actions and provided an explanation of circumstances surrounding the events that led to his offense.  He added that, despite the fact that he was told the offense would not be placed on the blotter, he informed his supervisor that the offense occurred.  He also provided information concerning his military career and his participation in substance abuse counseling since the time of the incident.  He requested the reprimand be placed in his local file.

4.  On 9 February 2009, after considering the applicant's response, the approving authority directed the GOMOR be filed in the applicant's OMPF.

5.  The GOMOR, dated 1 December 2008, referral document, applicant's response, and filing directive are filed in the performance section of the applicant's OMPF.
6.  On 6 July 2011, the applicant submitted a request to the DASEB for the transfer of the GOMOR to the restricted section of his OMPF because it had served its intended purpose.  He provided a summary of his achievements and assignments since receiving the GOMOR and explained how it had changed him for the better as a Soldier, leader, and member of society.  He also provided copies of four NCOERs, an AER, two awards, and a letter of induction.

7.  The DASEB Record of Proceedings, dated 18 August 2011, shows (in part):

   a.  the NCOER covering the period the applicant was reprimanded does not make any reference to his misconduct;

   b.  twenty-nine months had elapsed since the applicant received the GOMOR and: 

* there was no other derogatory information in his records
* he had received three NCOERs with superior ratings and potential for promotion since the incident
* he was selected as a Commandant's list graduate of Phase 2 of the Advanced Leader Course (ALC)
* he was inducted into the Sergeant Audie Murphy Club for professionalism within the NCO Corps
* he did not provide supporting statements from his chain of command
* he had not been considered for promotion in the primary zone
* he did not provide any evidence to show he had been disadvantaged

	c.  the DASEB determined that the evidence presented did not provide substantial evidence that the GOMOR had served its intended purpose and that its transfer would be in the interest of the Army.  Accordingly, the applicant's request was denied; and

	d.  The DASEB decision memorandum, dated 23 August 2011, is filed in the performance section of his OMPF.  The DASEB Record of Proceedings, dated 18 August 2011, is filed in the restricted section of his OMPF.

8.  In support of his application, the applicant provides the following additional documents.

   a.  U.S. Army Installation Management Command, Fort Bragg, NC:

    	(1)  Orders 290-84, dated 16 October 2008, as amended by Orders 30-83, dated 30 January 2009, that assigned the applicant to the 36th ASMC, Fort Bragg, with a reporting date of 10 February 2009;
    	(2)  Orders 070-204, dated 11 March 2011, and Orders 091-305, dated
1 April 2011, that revoked the applicant's assignment to the U.S. Army Medical Department Center and School, Fort Sam Houston, TX; and

    	(3)  Orders 090-287, dated 31 March 2011, that assigned the applicant to Detachment D, Company A (Student), 1st Special Warfare, Fort Bragg, NC, with a reporting date of 10 May 2011.

   b.  five DA Forms 2166-8 (NCOERs) covering the period 1 April 2007 through 30 April 2011:

    	(1)  the NCOER covering the period 1 April 2008 through 30 June 2009 (during which the incident occurred) makes no reference to his misconduct.  (It was completed by rating officials in his new unit.)

    	(2)  the five NCOERs show that the raters all evaluated his potential for promotion and/or service in positions of greater responsibility as "Among the Best."  The senior raters all evaluated his overall potential as "Successful" (number 1 block of 3) and his overall potential for promotion as "Superior" (number 1 block of 3).

   c.  three DA Forms 1059 (AERs) that show he:

* exceeded course standards for Phase 2 (Career Management Field) of the Healthcare ALC on 23 February 2011
* achieved course stands for Phase 3 (Medical Technical Tracking) of the Healthcare ALC on 4 March 2011
* achieved course standards for the Special Operations Combat Medic course on 9 February 2012

   d.  three letters in support of his request that recommend transfer of the GOMOR from the performance to the restricted section of the applicant's OMPF.

    	(1)  The letter from First Sergeant Elvin M_____, First Sergeant,
36th ASMC, Fort Bragg, NC, dated 9 May 2012, states that he assumed the duty of first sergeant of the company from the applicant, who had been the acting first sergeant.  He speaks highly of the applicant's professional traits and of the level of proficiency the unit's Soldiers demonstrated when he assumed the position, which he directly attributes to the applicant.  He also states that he spent many hours with the applicant assisting him in his preparation for appearance before the selection board for the Sergeant Audie Murphy Club, which selected the applicant.  He adds that the applicant is a community volunteer, he also helps build living areas for wounded warriors, and he embodies the Total Soldier Concept.  He concludes that the GOMOR has served its intended purpose and recommends its transfer.

    	(2)  The letter from Major David C. L_____, Commander, 759th, Forward Support Team (Airborne), Fort Bragg, NC, dated 8 June 2012, states the applicant served under his command as the detachment first sergeant for eight months.  He attests to the applicant's professionalism, leadership, and dependability.  He concludes that the GOMOR has served its intended purpose and recommends its transfer.

    	(3)  The letter from Captain Jeffrey J. B_____, Commander, Special Operations Medical Detachment, Fort Bragg, NC, dated 11 July 2012, states the applicant has served under his command for five months and he has been an extraordinary asset to the unit.  He attests to his professionalism and integrity.  He concludes that the GOMOR has served its intended purpose and recommends its transfer.

9.  U.S. Army Human Resources Command, (USA HRC), Fort Knox, KY, memorandum, dated 21 March 2011, subject:  Promotion List to SFC, shows the FY 2011 SFC promotion board convened on 3 February 2011 to consider eligible Soldiers for promotion to SFC.

   a.  The primary zone date of rank (DOR) was 3 February 2008 and earlier, and the secondary zone DOR was 4 February 2008 through 4 February 2009.

   b.  The board recessed on 22 February 2011 and its recommendations were approved by the Deputy Chief of Staff on 7 March 2011.

   c.  Of the 12,026 Soldiers considered by the board in the secondary zone, 2,296 (19.1%) were selected.  The applicant was in the secondary zone, but he was not selected.

10.  USA HRC, Fort Knox, KY, memorandum, dated 14 March 2012, subject:  Promotion List to SFC, shows the FY 2012 SFC promotion board convened on 24 January 2012 to consider eligible Soldiers for promotion to SFC.

   a.  The primary zone DOR was 3 February 2008 and earlier, and the secondary zone DOR was 4 February 2008 through 4 February 2009.  (A representative from USA HRC confirmed there was no change in the zones of consideration for the FY 2012 SFC Promotion Board from the FY 2011 SFC Promotion Board).

   b.  The board recessed on 2 March 2012 and its recommendations were approved by the Director of Military Personnel Management on 8 March 2012.

   c.  Of the 8,715 Soldiers considered by the board in the secondary zone, 2,514 (28.8%) were selected.  The applicant was in the secondary zone, but he was not selected.

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

	a.  Table 2-1 (Composition of the OMPF) 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 OMPF.  All other allied documents not listed will be filed in the restricted section of the OMPF.

	b.  Paragraph 2-3 (Composition of the OMPF) provides that the restricted section of the OMPF 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, USA HRC, or the Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF 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 OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

12.  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 OMPF.
	b.  Paragraph 7-2 (Policies and Standards), subparagraph b (Appeals for Transfers of OMPF Entries), contains guidance on transfers of OMPF 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 OMPF.

		(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 OMPF.

		(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 applicant contends the GOMOR filed in the performance section of his OMPF should be transferred to the restricted section of his OMPF because it has served its intended purpose.

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

3.  The applicant's request for transfer of the GOMOR filed in the performance section of his OMPF has been carefully considered and is found to have 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 nearly 4 years ago.  The applicant's professionalism, character, leader attributes, skills, and actions since the time of the incident, as documented by his NCOERs and AERs, show the applicant has learned and grown, both personally and professionally.


   b.  The evidence of record shows that the applicant's former first sergeant and two of his commanding officers offer their endorsement of the applicant's personal character and professionalism, attest to his worth and potential as an Army noncommissioned officer, and advocate his continued service in the U.S. Army in positions of increasing responsibility.

	c.  Contrary to the findings of the DASEB, there is no requirement that a Soldier must be disadvantaged or deprived of rights or privileges to show a GOMOR has served its intended purpose.

	d.  Therefore, there is substantial evidence to conclude that it would serve the best interest of the U.S. Army to grant the requested relief by transferring the GOMOR and all related documents to the restricted section of his OMPF which might assure the U.S. Army the benefit of the applicant's continued service.

4.  In view of the facts of this case, it would be appropriate to correct the applicant's record to show the GOMOR, dated 1 December 2008, and all allied documents were transferred to the restricted section of his OMPF.  As a result of this correction, it would also be appropriate to transfer the Headquarters, Army Special Review Boards, memorandum, dated 23 August 2011, from the performance section to the restricted section of his OMPF.

BOARD VOTE:

___X____  ____X __  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for 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 1 December 2008, all allied documents, and the Headquarters, Army Special Review Boards, memorandum, dated 23 August 2011, to the restricted section of his OMPF.



2.  This Record of Proceedings and associated documents will be filed in the restricted section of the individual's OMPF.




      __________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)                                         AR20120013512



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ABCMR Record of Proceedings (cont)                                         AR20120013512



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