BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120017719 


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 the general officer memorandum of reprimand (GOMOR) he received on 6 October 2005 and the Department of the Army Suitability Evaluation Board's (DASEB's) decision memorandum to the restricted section of his Army Military Human Resource Record (AMHRR).  He also requests removal of the duplicate of that GOMOR from his AMHRR or, in the alternative, transfer to the restricted section of his AMHRR.

2.  The applicant states:

* the intended purpose of the GOMOR has been served and its retention in the performance section of his AMHRR is unjust and unfair
* his commander directed filing the GOMOR in his official AMHRR
* he requested that the DASEB direct transfer of the GOMOR to the restricted section of his AMHRR, but his request was denied
* he has rehabilitated himself since he was reprimanded as his driving record and job performance demonstrate
* he was scheduled to report to Korea, which was delayed for 30 days so that the GOMOR could be administered
* after he completed his tour of duty in Korea, he completed the Army Substance Abuse Program (ASAP)
* his record is free of any derogatory information after 27 August 2005
* the intent of the GOMOR was to encourage him to reflect on his misconduct and to take positive steps to change and to ensure that the misconduct did not reoccur
* he has taken the GOMOR to heart and there has not been a reoccurrence in the 7 years since his driving under the influence (DUI) of alcohol offense 
* he was not promoted to sergeant first class in Fiscal Years (FY) 2009 through 2012
* the fair treatment of the Soldier is always in the best interest of the Army and consistent with Army values
* if his request to have the GOMOR transferred to the restricted section of his AMHRR is granted, the DASEB's decision memorandum should also be transferred to the restricted section
* the retention of duplicate copies of the GOMOR in the performance section of his AMHRR creates the appearance or impression that he received two separate reprimands

3.  The applicant provides:

* ASAP Prevention Coordinator memorandum, dated 5 June 2007
* self-authored memorandum to the President, DASEB, dated 29 May 2009
* DASEB Record of Proceedings, dated 24 September 2009
* DASEB notification letter, dated 2 October 2009
* three letters from individuals contending that they served with the applicant and attesting to his good conduct and character

CONSIDERATION OF EVIDENCE:

1.  On 25 February 2000, the applicant enlisted in the Army in pay grade E-1.  He was promoted through the ranks to sergeant/E-5 effective 1 October 2004.

2.  On 6 October 2005, the applicant received a GOMOR for DUI of alcohol on 27 August 2005.  The GOMOR states that a Fairfax police officer pulled his vehicle over and detected a strong order of alcohol.  He was administered a breath alcohol concentration (BAC) test which revealed he had a BAC of .14, almost twice the legal limit.  He was instructed to immediately acknowledge receipt of the reprimand and he was told he had 10 calendar days from receipt of the reprimand to submit matters for consideration.  The applicant acknowledged receipt of the GOMOR and he elected to submit written matters within 10 calendar days.

3.  In a memorandum, dated 14 October 2005, the applicant admitted his wrongdoing and he stated he was ashamed of his actions as they reflected poorly on him, his unit, and the U.S. Army.  He stated that he would not allow it to happen again and he requested that it not be allowed to end his career.  He further requested filing the GOMOR locally.

4.  On 17 October 2005, the applicant's commander recommended permanent filing of the GOMOR in the performance section of his AMHRR.

5.  On 24 October 2005, the commanding general directed filing the GOMOR in the applicant's AMHRR and inclusion of copies of the reprimand and all enclosures to the GOMOR action in his Unit Information Personnel File.

6.  On 29 May 2009, the applicant petitioned the DASEB for transfer of the GOMOR to the restricted section of his AMHRR.  The DASEB denied his request on 24 September 2009.  The DASEB stated there was insufficient substantive evidence at the time to show the GOMOR had served its intended purpose or that it was in the best interest of the Army to transfer the GOMOR.  The DASEB stated that the applicant was promoted to staff sergeant/E-6 on 1 October 2006, 1-year after the imposition of the GOMOR.  He was not selected for promotion during the FY09 Sergeant First Class Promotion Selection Board.  The DASEB stated he had provided no evidence to show he had been disadvantaged or deprived of any rights or privileges normally afforded to those noncommissioned officers who uphold the standards associated with the "Army Values."  The DASEB directed filing the board's decision memorandum in the applicant's AMHRR and filing the appeal documentation in the restricted section of his AMHRR.

7.  The applicant's AMHRR contains copies of DA Forms 2166-8 (Noncommissioned Officers Evaluation Reports (NCOERs)) for the periods covering September 2004 through 9 February 2013.  These reports show he earned superior ratings during these periods of service.  Also contained in his AMHRR are permanent orders showing he received two awards of the Army Commendation Medal and two awards of the Army Achievement Medal after receiving the GOMOR.  Other than the GOMOR he received, there is no other unfavorable information contained in his AMHRR.

8.  The applicant provides three letters from individuals contending that they served with the applicant and attesting to his good conduct and character.  He also provides a memorandum from the ASAP Prevention Coordinator, dated 5 June 2007, stating that he satisfactorily completed the course, meeting all requirements.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members 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.  It states:

	a.  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; and

	b.  unfavorable 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.  Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust, in whole or in part.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  In this case, the available records show that the GOMOR has served its intended purpose and should be transferred to the restricted section of his AMHRR.

3.  The GOMOR has been filed in the performance section of the applicant's AMHRR for almost 8 years.  He has had no other infractions since he received that GOMOR in October 2005.  He has received two awards of the Army Commendation Medal and two awards of the Army Achievement Medal from the time he received the GOMOR.  He has also received numerous superior ratings on his NCOERs from September 2004 to present.

4.  In view of the foregoing, the applicant's record should be corrected as recommended below.

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 GOMOR dated 6 October 2005, and all documents referencing the GOMOR, to include the DASEB's ROP and related documents, to the restricted section of 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)                                         AR20120017719





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ABCMR Record of Proceedings (cont)                                         AR20120017719



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