IN THE CASE OF:	  

		BOARD DATE:  15 January 2013

		DOCKET NUMBER:  AR20120020936 


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 or transfer of a General Officer Memorandum of Reprimand (GOMOR) he received on or about 29 January 2009 (i.e., 11 December 2008) from the performance to the restricted section of his Army Military Human Resource Record (AMHRR).

2.  He states he believes the record is unjust as the punishment has served its intended purpose.  As displayed in the attached character statement and officer evaluation reports (OERs), he has demonstrated a pattern of exemplary service as an officer.  It is in the best interest of the Army to transfer the reprimand to his restricted fiche because his experience and leadership ability serve as assets to his aviation battalion.

3.  He provides:

* Officer Record Brief
* rebuttal of GOMOR memorandum
* OERs ending on 1 July 2011 and 1 July 2012
* Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings
* character statement from his 2011 intermediate rater





CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he was appointed in the U.S. Army Reserve, as a warrant officer (WO) one, on 12 September 2008, with prior enlisted service.  He was ordered to active duty and entered active duty on the same day. 

2.  On 11 December 2008, he was issued a GOMOR for making a false official statement, disobeying a lawful order, violating the SERE (survival, evasion, resistance, and escape) rules, and conduct unbecoming an officer and gentleman.  The GOMOR stated:

	a.  On 31 October 2008, at approximately 0200, the applicant was transported from the SERE training to the emergency room due to a hernia, a pre-existing medical condition, which he indicated as non-existent on his SERE medical screening documents.  He was given a follow-up appointment later that day and taken to the barracks, where SERE cadre ordered him not to eat or remove his vehicle from Guthrie Field due to safety concerns.  At 0600, a SERE medic attempted to pick him up for his follow-up appointment, and he was not in the barracks.

	b.  At 0851, another SERE medic saw the applicant at Building 8360, and not in the barracks.  When questioned by the SERE Commander, he lied by stating that he was in the barracks room, but then admitted to leaving the barracks, driving his vehicle, having breakfast, and using his cell phone, all in violation of the SERE cadre's orders and SERE rules.  He was advised of his rights.

3.  On 12 December 2008, he acknowledged receipt of the GOMOR.  On 17 December 2008, he requested an extension of his reprimand rebuttal.  

4.  In his reprimand rebuttal, dated 19 December 2008, the applicant stated:

   a.  There were no excuses for the actions that gave rise to the reprimand.  He made a series of wrong decisions and he did not behave with the requisite honor of an officer or a gentleman.  He had learned from his mistakes and was ready to accept the consequences of those mistakes.

   b.  He did not try to deceive medical personnel by concealing a significant medical condition.  Prior to SERE school he had not been diagnosed with a hernia.  He had noticed soreness in his groin which he assumed was due to a strained muscle.  He did not seek medical treatment for such an apparently minor injury.  In fact, in the pre-SERE physical training test he scored 290 points.  Unfortunately, during the SERE training, the soreness in his groin developed into excruciating pain.  After speaking with the medic, he learned for the first time he had a serious medical condition.  There is no mitigation for his behavior after getting dropped from the training.

   c.  He asked to be given the opportunity to redeem himself and continue to serve as a WO and aviator.  He would strive to earn the respect and confidence of his seniors, peers, and subordinates.  He would live up to what was expected of him as an officer and could confidently say that he would hold himself to the highest military standards in the future.  Based on the foregoing, he respectfully requested withdrawal of the GOMOR.

5.  On 19 December 2008, the applicant's battalion commander recommended the GOMOR be permanently filed in the applicant's AMHRR.  He stated the applicant's actions after being removed from SERE due to a medical condition were inconsistent with what was expected of an officer and an aviator. Upon arrival at SERE barracks, the applicant was instructed to remain at that location.  He did not follow instructions and drove himself to breakfast.  This was in direct violation of the rules of engagement (ROE) for the SERE course and the instructions he received from the SERE cadre.  He acknowledged understanding of the ROE for SERE, yet he willfully disobeyed a direct order, disregarded the ROE and lied to a field grade officer.

6.  On 29 January 2009, the Commander, U.S. Army Aviation Center of Excellence, a general officer, approved and directed the permanent filing of the GOMOR in the applicant's AMHRR.

7.  He was promoted to chief warrant officer two (CW2) on 12 September 2010. 

8.  He deployed in support of Operation Enduring Freedom not to exceed 365 days beginning on or about 12 January 2012.  

9.  He provides copies of two OERs, ending on 1 July 2011 and 1 July 2012, where he received "Outstanding and Satisfactory Performances" and "Best Qualified" assessments.

10.  A review of his records located on the integrated Personnel Electronic Records Management System shows the GOMOR is filed in the performance section of his AMHRR.

11.  On 27 October 2011, the DASEB denied his request for a transfer of the GOMOR from the performance to the restricted section of his AMHRR.

12.  In a character statement, dated 11 March 2012, the applicant's company commander stated:

   a.  The purpose of the memorandum was to provide support for the applicant for inclusion with his request for removal of a GOMOR from his AMHRR.  He had known the applicant for one year as his commander.  It was without the slightest hesitation he commended to the Board the applicant's integrity and character as an officer and gentleman.  

   b.  As a young officer, the applicant had earned his respect as well as that of his junior Soldiers, his peers, and his superiors.  The applicant shined above his peers for his positive attitude, willingness to work as a member of a functioning team, and his unparalleled sense of selfless service.

   c.  He reviewed the applicant's GOMOR and the documents associated with his appeal for its removal from his AMHRR.  The applicant made a mistake on 31 October 2008 when he willfully disobeyed a lawful order and made a false statement.  Since then, however, he had lived with integrity beyond question, to such an extent that he could not imagine him capable of the poor conduct he displayed more than three years ago.

   d.  It was without a doubt that it was in the Army's best interest to retain this future CW4 and top performer.  The GOMOR had served its purpose insofar as it had corrected unacceptable behavior and motivated the applicant to become an officer of impeccable character.

13.  Army Regulation 600-37 (Unfavorable Information) provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that:

	a.  Unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

	b.  A GOMOR, regardless of issuing authority, may be filed in the AMHRR only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Once an official document has been properly filed on 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  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.

14.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR Management Program.  It also prescribes the composition of the AMHRR.  This regulation states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was issued a GOMOR on 11 December 2008 for making a false statement, disobeying a lawful order, violating SERE rules, and conduct unbecoming an officer and an gentleman.  

2.  He was afforded the opportunity to review the evidence against him and to submit matters on his own behalf prior to a final filing decision.  He submitted a rebuttal wherein he requested withdrawal of the GOMOR.  His battalion commander stated he (the applicant) was in direct violation of the ROE for the SERE course and the instructions he received from the SERE cadre.  He acknowledged his understanding of the ROE for SERE; yet, he willfully disobeyed a direct order, disregarded the ROE and lied to a field grade officer.  

3.  After considering the evidence, his rebuttal, and the filing recommendation of the chain of command, the Commander, U.S. Army Aviation Center of Excellent directed the GOMOR be permanently filed in the applicant's AMHRR.  The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate.  Once the GOMOR was filed on his AMHRR, it became a permanent record and will not be removed from or moved to another part unless directed by certain agencies, such as this Board.

4.  When the CG reprimanded him, he had the option to file the GOMOR in the local file, the performance section of the AMHRR, or the restricted section of the AMHRR.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant failed to set an example by willfully disobeying an order, disregarding the ROE, and lying to an officer.  His actions were inconsistent with what was expected of an officer and an aviator.  As such, the GOMOR was correctly filed in his AMHRR.  

5.  However, a GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  There is no doubt that after his mistake in 2008, the applicant has rebounded in an excellent manner.  He has taken big leaps towards improving himself personally and professionally.  He has rebounded since his incident and successfully received among the best OERs (his 2012 OER is rated as Above Center of Mass), he was promoted to CW2, and he is currently deployed.  It appears the GOMOR has served its intended purpose.

6.  While there is insufficient evidence to show the GOMOR was inaccurate, unjust, flawed, or improperly imposed, and thus its removal is not warranted, the applicant has proven through performance that he is dedicated to bettering himself and Soldiering on, despite the set-back.  The existence of the GOMOR on his performance fiche is a detractor that sticks out as soon as his records are reviewed.  Therefore, in the interest of justice, the applicant's GOMOR should be 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 the evidence presented is 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 11 December 2008, and allied documents to the restricted section of his AMHRR.

2.  The Board further determined 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, dated          11 December 2008, 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)                                         AR20120020936



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ABCMR Record of Proceedings (cont)                                         AR20120020936


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