IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120016932 


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 a General Officer Memorandum of Reprimand (GOMOR) and DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be transferred from the performance (P) portion to the restricted (R) portion of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).  

2.  The applicant states he is petitioning for the transfer of the documents in question to the R portion of his AMHRR based on their intended purpose having been served and being in the best interest of the Army.  He states he has received 3 above average Officer Evaluation Reports (OERs) and an Academic Evaluation Report (AER) since the imposition of the GOMOR and Article 15.  He claims the intent of these actions has been served given he has twice been non-selected for promotion to chief warrant officer three (CW3) and has appeared before a Board of Inquiry (BOI).  He indicates he has 16 years of active duty service and would like the opportunity to serve for more than 20 years.  

3.  The applicant provides the documents identified in the Index provided with his application in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  After serving in an enlisted and warrant officer status in the Regular Army, U.S. Army Reserve (USAR), and Army National Guard (ARNG) between 
5 December 1996 and 7 October 2003, the applicant enlisted in the RA, in the grade of sergeant/E-5, on 29 June 2004.
2.  On 7 April 2006, the applicant was appointed a warrant officer one (WO1) in the USAR, entered active duty, and continued serving on active duty in that status.  He was promoted to chief warrant officer two (CW2) on 7 April 2008.  

3. On 10 October 2008, while serving in Korea, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 128 of the UCMJ by assaulting his wife on 12 July 2008 and for being drunk and disorderly on 12 July 2008.  His punishment included a forfeiture of $150.00 per month for two months and a written reprimand.  The applicant elected not to appeal the punishment.  The imposing officer, the Deputy Commanding General (DCG), Eighth United States Army (EUSA), a major general, directed the DA Form 2627 be filed in the P portion of the OMPF (AMHRR).  

4.  On 31 October 2008, the DCG published a GOMOR in which he reprimanded the applicant for assaulting his wife and being drunk and disorderly on 12 July 2008.  The DCG indicated the applicant exercised extremely poor judgment which undermined his position as an officer and as a leader and which tarnished the image of the command.  The DCG indicated that based on the applicant's misconduct, he had serious doubts about the applicant's ability to continue to serve as an officer and leader in the U.S. Army.  The DCG indicated the GOMOR was imposed as punishment under Article 15, UCMJ and would be filed with the Article 15 in the P portion of the applicant's OMPF (AMHRR).   

5.  The record contains an annual OER the applicant received covering the period 10 July 2010 to 24 February 2012, in which he was evaluated as a battalion automotive maintenance officer for a brigade support battalion for a heavy brigade combat team at Fort Bliss, Texas.  The rater, a captain, placed the applicant in block 1 (Outstanding Performance-Must Promote) in Part V (Performance and Potential Evaluation-Rater) and the Senor Rater, a lieutenant colonel, placed the applicant in the "Best Qualified" block in Part VII (Senior Rater-Evaluate the rater officer's promotion potential to the next higher grade).  This was a center of mass report.  

6.  A change of rater OER covering the period 14 July 2009 to 9 July 2010 contains an evaluation of the applicant as a battalion maintenance officer for a Military Intelligence battalion in Korea.  The rater, a major, placed the applicant in block 1 (Outstanding Performance-Must Promote) in Part V (Performance and Potential Evaluation-Rater) and the Senor Rater, a lieutenant colonel, placed the applicant in the "Best Qualified" block in Part VII (Senior Rater-Evaluate the rater officer's promotion potential to the next higher grade).  

7.  An AER, dated 12 January 2011, shows the applicant completed the senior automotive maintenance warrant officer advanced course and received a second block (Achieved Course Standards) evaluation.  

8.  The applicant was considered and not selected for promotion by the FYs 2011 and 2012 CW3 Promotion Selection Boards.  

9.  On 30 September 2011, the Department of the Army Suitability Evaluation Board (DASEB), after examining the applicant's record and the documents he submitted in appeal, determined the evidence did not provide substantial evidence that the record of NJP in question had served its intended purpose or that its transfer would be in the best interest of the Army.  As a result, the DASEB voted unanimously to deny the applicant's appeal.  The DASEB noted the applicant's achievements since the imposition of the NJP, which included two above average OERs and an AER, completion of a master's degree, and completion of several military training courses including the advanced course.  It was also noted the applicant was not selected for promotion by the FY 2011 CW3 Promotion Selection Board.  The DASEB noted that although the accomplishments of the applicant and his non-selection for promotion seemed to show the intended purpose of the Article 15 had been served, it was premature to transfer the Article 15 without more evidence of a compelling nature to show it would be in the best interest of the Army.  It was noted that the applicant did not provide supporting statements from previous or current chain of command members.  

10.  On 30 July 2012, the applicant was required to appear before a BOI to show cause for retention.  After considering all the evidence and testimony, the BOI recommended the applicant be retained in the U.S. Army.  

11.  The applicant provides a statement from his spouse, dated 21 August 2012, in which she indicates the incident that resulted in the applicant receiving the NJP and GOMOR in question was an isolated incident and took place more than 4 years ago.  She states she and the applicant have moved forward and strengthened their relationship.  She concludes by stating she and the applicant are happily married and are raising their children together in El Paso, Texas.  He also provides statements from his current battalion commander and executive officer.  These members of his chain of command both recommend approval of the applicant's request and attest to his value to the unit.  The executive officer also confirms he has witnessed the applicant and his wife since they came to El 


Paso, Texas and has seen nothing that would indicate the isolated incident in question would ever occur again.  

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.  It also contains guidance on removal of transfer of unfavorable information from the record.  Chapter 7 contains guidance on appeals and petitions and states, in pertinent part, that records of nonjudicial punishment 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's request to transfer the NJP action and the related GOMOR to the R portion of the AMHRR has been carefully considered and found to have merit.  

2.  The evidence of record confirms the applicant has suffered serious consequences from the NJP and related actions.  These include his having to show cause to a BOI for retention and his twice not being selected for promotion to CW3.  In spite of these repercussions, the applicant has continued to serve at a high level, as evidenced by the evaluation reports received subsequent to the NJP action, and the supporting statements from members of his current chain of command.  

3.  In addition, a statement from his wife and from his current executive officer both indicate the incident that led to the NJP and related actions was an isolated incident and would not be repeated.  Given the applicant’s continued outstanding performance while facing this adversity, it appears clear the intended purpose of the NJP and related actions have served their intended purpose.  Further, it appears it would be in the best interest of the Army to retain this Soldier.  As a result, it would be appropriate to transfer the NJP record and all related documents, including the GOMOR, to the R portion of his AMHRR.   

4.  This action is based on the NJP and GOMOR having served their intended purpose as of now and does not support the applicant's record be forwarded to a Special Selection Board for promotion reconsideration.  



BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 10 October 2008 DA Form 2627, 31 October 2008 GOMOR, and all related documents to the restricted portion of the 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)                                         AR20120016932



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ABCMR Record of Proceedings (cont)                                         AR20120016932



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