IN THE CASE OF:	  

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120015274 


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 the General Officer Memorandum of Reprimand (GOMOR) and all documentation pertaining to the unit drug test results from his Army Military Human Resources Record (AMHRR).  

2.  He states this material was to be destroyed after 3 years of being in his AMHRR.  He contends that it was not an error but an unjust act because there was a problem with results from the drug test.  

3.  He adds that his records are going up before a promotion board.  Since the time of the incident his records were cleared by a board and as a result, he needs this derogatory information removed from his records

4.  The applicant provides a copy of the drug test results and the GOMOR. 

CONSIDERATION OF EVIDENCE:

1.  After a period of prior enlisted service in the Army National Guard, he enlisted in the U.S. Army Reserve (USAR) on 5 June 2002.  He is currently serving in the grade of master sergeant (MSG)/E-8 in a Troop Program Unit. 

2.  The GOMOR that the applicant provided and which is also filed in his AMHRR is not dated.  He was issued this GOMOR in the grade of MSG/E-8 and it states, in part:

	a.  He was reprimanded for testing positive for cocaine use on 7 January 2007.  His decision to use cocaine breached the special trust and confidence accorded to him as a noncommissioned officer (NCO).  Furthermore, his actions called into question his judgment and suitability to be a leader of Soldiers.  

	b.  The GOMOR was imposed as an administrative measure and not as nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).  As the General Court-Martial Convening Authority (GCMCA), Major General (MG) J.E.A. stated he could permanently file the GOMOR in his AMHRR or in the applicant's unit's Military Justice file for up to 3 years or until his reassignment to another general court-martial jurisdiction, whichever came first or not file it at all. 

	c.  MG J.E.A. stated his intent was to file the GOMOR in the applicant's AMHRR unless he submitted statements or documents that provided a valid excuse for his conduct, or matters in extenuation and mitigation that convince the GCMCA that such filing was not warranted.  

	d.  The applicant was provided 30 days to forward any matters concerning the GOMOR through his chain of command.

3.  A memorandum, subject:  Receipt of GOMOR – Election of Options shows he read and understood the unfavorable information presented against him and acknowledged receipt of the GOMOR on 12 February 2007.  He was advised of his rights and elected not to make a statement or to present any evidence.  

4.  The memoranda he provided shows his entire chain of command recommended the GOMOR be permanently filed in his AMHRR.  

5.  The applicant's records contain and he also provided a memorandum, dated 18 March 2007, subject:  Filing Determination for GOMOR, (Applicant's name and Social Security Account Number).  The GCMCA stated he considered the circumstances surrounding the reprimand issued to the applicant, alternative non-punitive measures, and the recommendation of his chain of command.  The applicant indicated on his acknowledgement of receipt that he did not intend to submit matters in mitigation or extenuation.  As a result, he directed the permanent filing of the GOMOR in the applicant's AHMRR.

6.  A review of his AMHRR shows the GOMOR is filed in the permanent section and the unit drug test results are filed in the restricted section.  His records are void of any type of NJP or other adverse actions.

7.  His records are void of any documentation showing the results of the drug test was flawed or inaccurate.  

8.  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.

      a.  A GOMOR 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 chapter 7 .

      b.  Paragraph 7-2 (Policies and standards) 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 OMPF. 

   c.  Paragraph 7-2b states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.  In addition such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would 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.  This regulation further provides that in the cases where the appeal is denied, a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record.  The appeal will be placed in the restricted section of the AMHRR. 

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR.  It also prescribes the composition of the AMHRR.  Depending on the purpose, the documents will be filed in performance, service, or restricted section.  
     a.  The performance section is routinely used by career managers and selection boards.  Documents placed in this section are limited to those that provide evidence of a Soldier's demonstrated performance.  These documents are used for evaluation and selection purposes.  

     b.  Disciplinary information filed on the restricted section of the AMHRR will be provided to Command Sergeant Major/Sergeant Major (CSM/SGM) promotion boards, U.S. Sergeant Major Course selection boards, and CSM/SGM Retention boards to ensure the best qualified Soldiers are selected for these positions of highest trust. 

     c.  Documents in the restricted section 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 interest of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR which was issued on 12 February 2007 should be removed from his AMHRR because there was a problem with the results of the drug test.  The applicant also contends all documentation pertaining to the drug test was to be destroyed after 3 years of filing in his AMHRR.

2.  The available evidence shows the applicant was issued a GOMOR for testing positive for cocaine use on 7 January 2007.  He was presented the GOMOR and provided 30 days to submit any evidence or statements on his own behalf; however, he elected not to provide any evidence or statements.  

3.  The GOMOR shows that MG J.E.A. stated he could elect to permanently file the GOMOR in the applicant's AMHRR or in the alternative file it in his unit's Military Justice file for up to 3 years.  However, he chose to permanently file this document in the applicant's AMHRR.  The evidence also shows the GOMOR was permanently filed in his AMHRR in accordance with the applicable regulations and with recommendations from his chain of command.  

4.  The fact that his records are going before a promotion board for possible selection for CSM/SGM or to attend the USASMC does not require the automatic removal of derogatory material from the permanent section of his AMHRR.  In fact, the GOMOR is something that a promotion board should consider when comparing his records against those of his peers who do not have misconduct documented in their records.

5.  Based on the available evidence the ABCMR will not second guess the recommendation given by his chain of command and the direction given by the GCMCA pertaining to the filing of the GOMOR.  Therefore, there is no basis to grant the requested relief in this case.

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)                                         AR20120015274





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ABCMR Record of Proceedings (cont)                                         AR20120015274



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