IN THE CASE OF:	  

		BOARD DATE:  22 August 2013

		DOCKET NUMBER:  AR20130001618 


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 folder to the restricted folder of her Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states, in effect, that she received a letter signed by the officer who imposed the GOMOR recommending that the GOMOR be transferred to the restricted folder of her AMHRR based on intent served.  She states she has learned and reflected on the unfortunate experience since receiving the GOMOR and has attempted to mentor junior officers on lessons learned.  Additionally, she enrolled in and completed the common core intermediate level education in an 18-month period, deployed to Bosnia, and has been selected for a 6-month deployment to U.S. Africa Command beginning in October 2012.

3.  The applicant provides a self-authored memorandum for the National Guard Bureau Appeals and Analysis Branch, a memorandum from the general officer who imposed the GOMOR who is now a retired brigadier general, a copy of her service school academic evaluation reports, a copy of a subsequent officer evaluation report, and a copy of her orders to active duty.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 29 February 2008 while serving as an Army National Guard military intelligence major in Iraq, a GOMOR was imposed against the applicant for possession of and/or knowledge of possession of alcohol, making a false official statement, obstructing justice and false swearing, and conduct unbecoming of an officer.  She refused to sign an acknowledgement of receipt of the GOMOR but did submit a rebuttal.  The imposing officer, a brigadier general commanding the military police brigade of Task Force Military Police South, directed filing the GOMOR in the performance folder of her records.

3.  On 17 June 2010, the applicant applied to this Board requesting removal of the GOMOR and all associated documents from her official records as being unsubstantiated.  The Board denied her request on 10 March 2011.

4.  The memorandum submitted by the applicant from the general officer who issued the GOMOR is addressed to the Department of the Army Suitability Evaluation Board (DASEB) and is dated 12 December 2012.  He recommends transferring the GOMOR to the applicant's restricted file as it has more than served its intended purpose because the applicant has made significant strides in her career as characterized by top-block officer evaluations in increased responsibility positions and deployments, as well as completion of intermediate level education, formerly known as the Command and General Staff Officer Course.  The memorandum is prepared on U.S. Africa Command letterhead and the signature block indicates the imposing general officer is now retired.

5.  A review of her official records shows that prior to receiving the contested GOMOR, the applicant had no derogatory information filed in her records and she had an excellent record of performance.  She also has not had any derogatory information placed in her file since the GOMOR was issued and she received a referred officer evaluation report for the period in question.

6.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) serves as the authority for filing and the release of documents authorized for filing in the AMHRR.  It states the restricted folder is used for historical data that may normally be improper for viewing by selection boards or career managers.  Documents in this folder are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, corrections to other parts of the AMHRR; record investigation reports; record appellate actions; and to protect the interests of the Soldier and the Army.  The release of information in this folder is controlled and will not be released without written approval from the U.S. Army Human Resources Command or the Department of the Army Headquarters selection board proponent.

7.  Army Regulation 600-37 (Unfavorable Information) serves as the authority for filing unfavorable information in the AMHRR.  It provides that the purpose of the regulation is to ensure that the best interests of the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It further states that a non-punitive memorandum of reprimand or admonition will be filed in the AMHRR only when directed by a general officer or the officer having general court-martial jurisdiction over the recipient.

8.  Army Regulation 600-37, paragraph 7-2(f), provides that an officer who directed filing an administrative letter of reprimand, admonition, or censure in the AMHRR may request its revision, alteration, or removal, if later investigation determined it was untrue or unjust, in whole or in part.  An officer who directed the filing of such a letter in the AMHRR may not initiate an appeal on the basis that the letter has served its intended purpose.  However, a letter of support may be submitted with the applicant's appeal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR should be transferred to the restricted folder of her AMHRR based on intent served has been noted and appears to lack merit.

2.  While the applicant has received a letter of support from the imposing general officer recommending transfer of the GOMOR to the restricted folder of her AMHRR based on intent served, he does so now as a retired officer serving in the same command as the applicant.

3.  It should be noted that at the time the imposing officer made the decision to file the GOMOR in her official records, it was his responsibility to consider the nature of her misconduct as well as her overall service record before making a decision to file the GOMOR in her official records.

4.  The applicant had an excellent record of service until the GOMOR was imposed and has continued to have an excellent record of performance since it was imposed.  When the applicant previously applied to the Board to have the GOMOR removed in its entirety, she asserted that the GOMOR was unjust and unsubstantiated.  Accordingly, excellent performance in this case is not indicative that the applicant did not deserve the GOMOR or that it has now served its purpose.

5.  The applicant was serving as a field-grade officer in an imminent danger area at the time she received the GOMOR for possession of and/or knowledge of possession of alcohol, making a false official statement, obstructing justice and false swearing, and conduct unbecoming of an officer.  As a field-grade officer she was expected to be aware of the seriousness of all of those offenses and was obligated not to be a party to or tolerate any of them.

6.  Therefore, the fact that she has continued to progress professionally is not sufficient to transfer the GOMOR to the restricted folder of her AMHRR when considering the offenses for which she was accused and the circumstances at the time the GOMOR was issued.

7.  Accordingly, there appears to be no basis to grant her request to transfer the GOMOR to the restricted folder of her AMHRR.

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 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)                                         AR20130001618



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ABCMR Record of Proceedings (cont)                                         AR20130001618



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