IN THE CASE OF:	  

		BOARD DATE:  5 November 2013

		DOCKET NUMBER:  AR20130004108 


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 following documents from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File):

* general officer memorandum of reprimand (GOMOR), dated 23 April 1998
* DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 24 April 1998

2.  The applicant states the GOMOR was unjust considering that it was issued after an isolated incident and lapse of judgment in otherwise lengthy and honorable service.  A search of previous cases adjudicated by the Army Board for Correction of Military Records (ABCMR) yielded no other case where a GOMOR was placed in a Soldier's AMHRR for such an incident.  Furthermore, he believes the GOMOR is untrue since the supporting documents list the wrong and far worse infraction which paints him in a terrible light and adds to this injustice.  Additionally, it would be pointless to remove the GOMOR and its supporting documentation while the AER contains the same information.  The AER is further evidence that he was asleep in his room and not on duty which supports his contention that the statement "he was drunk on duty" is false and has created an injustice.

3.  The applicant provides:

* contested GOMOR and associated documents
* contested DA Form 1059
* memorandum, Headquarters, 3rd Battalion (Airborne), 1st Special Warfare Training Group (Airborne), U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), subject:  Notification of Relief (Nonacademic), and associated documents
* statement of support
* U.S. Army Reserve (USAR) discharge orders
* other DA Forms 1059
* multiple award orders and/or letters of commendation/appreciation
* DA Form 330 (Language Proficiency Questionnaire)
* Certificate of Training
* sub-course completion notice
* divorce decree
* Internet printout of prior ABCMR cases containing keywords "GOMOR" and "alcohol"
* photographs
* curriculum vitae
* Naval War College transcripts
* National Defense University transcripts
* Naval War College Certificate of Recognition
* Contemporary Insurgent Warfare Course Certificate of Completion
* letter of recommendation
* U.S. Government Printing Office Fiscal Year 2013 Non-Supervisory Performance Plan and Employee Performance Rating
* Bataan Memorial Death March Certificate of Participation

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 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.  Having prior enlisted service, the applicant was appointed as a Reserve commissioned officer and executed an oath of office on 31 July 1987.

3.  He was subsequently appointed as a second lieutenant in the Illinois Army National Guard (ILARNG) and executed the oaths of office on 19 August 1987.  He completed the Cannon Field Artillery Course at Fort Sill, OK.

4.  He was honorably separated from the ILARNG on 27 July 1990 and he was transferred to the USAR Control Group (Reinforcement).

5.  On 25 July 1991, he was considered for promotion to captain (CPT) by the 1994 Reserve Components Selection Board (RCSB), but he was not selected.

6.  He was considered for promotion to CPT by the 1995 RCSBP and he was selected for promotion.

7.  On 13 April 1998, he was enrolled in phase II of the Civil Affairs Officer Advanced Course at USAJFKSWCS, Fort Bragg, NC.

8.  On 21 April 1998, a military police officer submitted a statement indicating he administered an alcohol-sensor breath test to the applicant and his blood alcohol concentration was determined to be .21 percent.  The Military Police official opined the applicant was under the influence of an alcoholic substance.

9.  On 21 April 1998 in a memorandum to the Commander, 3rd Battalion, 1st Special Warfare Training Group (Airborne), USAJFKSWCS, the applicant's immediate commander requested the applicant's relief (nonacademic) from the Civil Affairs Officer Advanced Course by reason of misconduct.

10.  The applicant acknowledged receipt of the notification of relief from the course and indicated he did not intend to appeal.

11.  On 22 April 1998, the applicant was counseled by his chain of command for being drunk on duty and lying about having a death in the family.  His commander recommended his referral to the Army Drug and Alcohol Prevention and Control Program, release from the Civil Affairs Advanced Course, and receipt of a GOMOR.

12.  On 23 April 1998, the Commander, 3rd Battalion, 1st Special Warfare Training Group (Airborne), USAJFKSWCS, ordered the applicant's relief from the course in accordance with USAJFKSWCS Regulation 350-12 (Reliefs, Recycles, and Retraining of Resident Students and International Military Students), paragraph 2-3(8), by reason of misconduct.

13.  The applicant's DA Form 1059, dated 22 April 1998, shows he attended the Civil Affairs Officer Advanced Course from 13 to 24 April 1998.  Item 13 (Performance Summary) shows the entry "Failed to Achieve Course Standards." 
Item 16 (Comments) states, "[Applicant] was relieved from the course on day seven (21 Apr 98) due to an alcohol related incident.  [Applicant] was found in his room intoxicated (.21 breathalyzer) when he was supposed to be in class." 
This form was prepared and authenticated by the course manager and reviewed and authenticated by the commander.

14.  On 23 April 1998, he was reprimanded in writing by the Commanding General (CG), USAJFKSWCS for misconduct.  The GOMOR stated:

On 23 April 1998, you failed to report to the B Company Commander's office as you were required to do.  The B Company Commander discovered you intoxicated in your room.  You had a blood alcohol content of .21%.  Your failure to report for duty as a result of previous overindulgence in intoxicating liquor violates Article 134, UCMJ [Uniform Code of Military Justice].  Additionally, you misled the Commander about a relative's death.  This conduct was unbecoming of an officer under Article 133, UCMJ.

…You have violated a position of trust and have discredited yourself, the U.S. Army, and this command.  Your actions cause me to question your future value to the Army.

This reprimand is imposed as an administrative measure…and not as punishment under the Uniform Code of Military Justice….

15.  On 23 April 1998, the applicant acknowledged receipt of the GOMOR and indicated he wished to submit a statement in his behalf.  His statement is not available for review with this case.

16.  After careful consideration of the facts and circumstances pertaining to the applicant, the imposing CG directed permanent filing of the GOMOR in the applicant's AMHRR.

17.  On 21 January 1999, the applicant was discharged from the USAR under honorable conditions (general) by authority of Army Regulation 135-175 (Separation of Officers), paragraphs 2-12(n) (Failure to Meet Standards in a Course of Instruction at a Service School Due to Disciplinary Reasons) and paragraph 2-12(o) (Conduct Unbecoming an Officer).

18.  There is no indication he appealed the contested AER to the Department of the Army Suitability Evaluation Board.

19.  There is no indication he appealed the contested GOMOR to the Officer Special Review Board.

20.  He submitted:

	a.  a self-authored statement contending that the GOMOR was untrue and unjust;

	b.  a statement of support from a retired general officer, dated 2 February 2003, who opines that the applicant possesses great potential to advance and that the GOMOR has served its purpose;

	c.  multiple award orders and/or letters of commendation/appreciation, to include the Parachutist Badge and the Army Achievement Medal;

	d.  a DA Form 330, dated 14 August 1998, which shows he was administered a language proficiency test in Russian;

	e.  a certificate of training, dated 12 August 1998, which shows he completed the Combat Lifesavers Course;

	f.  a sub-course completion notice which shows he completed phase I of the Civil Affairs Course;

	g.  his divorce decree, an Internet printout of prior ABCMR cases, photographs, his curriculum vitae, transcripts, and certificates of recognition/completion;

	h.  a letter of recommendation from an adjunct professor at the U.S. Naval War College;

	i.  his employee performance plan and rating; and

	j.  a certificate of participation in the Bataan Memorial Death March.

21.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the AMHRR and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Appendix B-1 states a letter of reprimand is filed in the performance folder of the AMHRR.

22.  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.

23.  A memorandum of reprimand 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 folder.  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 Army Regulation 600-37, chapter 7.  Army Regulation 600-37, paragraph 7-2, 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

24.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed policies and tasks for the Officer Evaluation Reporting System that included reporting systems for academic performance and potential.

	a.  Academic performance counseling and evaluations for military schools will be conducted in accordance with procedures established at the local level by the commandant of the school and the Commander, U.S. Army Training and Doctrine Command.  Academic performance counseling and evaluations for military personnel attending civilian educational, medical, or industrial institution will be conducted in accordance with procedures established at the local level by the dean of the institution or appropriate civilian official.

	b.  For Reserve Component personnel not on active duty, the service school commandant for service school resident courses is responsible for preparing the AER.

	c.  There are many types of reports that must be referred to the student by the reviewing official for acknowledgment and comment.  The following types of reports will be referred:

* any report with a "NO" response
* any report with an "Unsatisfactory" rating
* any report with a "marginally achieved course standards" response
* any report with a "failed to achieve course standards" response
* any report with comments that, in the opinion of the reviewing official, are so derogatory that the report may have an adverse impact on the student's career

	d.  An evaluation report accepted by Headquarters, Department of the Army (HQDA), and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the GOMOR:

	a.  The available evidence shows the applicant failed to report to his company commander due to his intoxication.  He also lied about the death of a relative.  Accordingly, the applicant received a GOMOR.  He was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision.  He appears to have done so, although what he submitted is not available to this Board.  After careful consideration of the applicant's case and his rebuttal, the imposing general officer ordered the filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance folder of his AMHRR.

	b.  The applicant was reprimanded not only for his failure to report to his company commander due to his intoxication, but for also lying about a relative's death.  Among the purposes of filing unfavorable information is protection, not only of the Soldier's interests but for the Army's interests as well.  Here, the applicant violated that trust.  His conduct was inexcusable and his actions brought discredit upon himself and the Army.  The GOMOR was correctly filed.  The applicant has not proven this GOMOR to be either untrue or unjust.

	c.  His post-service achievements are noteworthy, but they do not outweigh his misconduct.  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 was a CPT, an officer, a student, and a Soldier.  His actions caused the imposing general officer to question his future value to the Army.

	d.  The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate.  Once the GOMOR was filed in his AMHRR, it became a permanent record and will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  It is unclear how the applicant determined the GOMOR served its purpose since he was discharged under honorable conditions (general) the following year.

2.  With respect to the DA Form 1059:

	a.  The applicant attended the Civil Affairs Officer Advanced Course, but he was removed from the course due to his misconduct.  His performance summary required the AER to be referred to the applicant.  The applicant acknowledged his relief and he was advised of his rights.  He elected not to submit a statement in his own behalf.

	b.  The AER was filed in the applicant's AMHRR together with his acknowledgement and associated documents.  The applicant neither requested a commander's inquiry nor contested this filing since.  Likewise, there is no indication that he appealed this DA Form 1059 to the higher commander or commandant or to the Department of the Army Suitability Evaluation Board.

	c.  An AER accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Over 15 years have passed since this form was issued.  The applicant does not provide evidence that this form is in error or why he did not exercise due diligence since this form was filed in his AMHRR in 1998.

3.  Cases adjudicated by the ABCMR do not set precedence.  Each case is considered on its own merits.  The ABCMR does not investigate issues or normally reexamine issues of guilt or innocence.  This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant acknowledged receipt of the GOMOR, was given the right to submit a rebuttal, and was afforded the opportunity to appeal the GOMOR and the DA Form 1059 through the proper channels.

4.  In view of the foregoing evidence, there is an insufficient basis to remove the contested GOMOR or the contested DA Form 1059 from his 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)                                         AR20130004108



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ABCMR Record of Proceedings (cont)                                         AR20130004108



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