IN THE CASE OF:  

		BOARD DATE:   20 August 2013

		DOCKET NUMBER:  AR20130004460


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 the transfer of his General Officer Memorandum of Reprimand (GOMOR) and all allied documents within his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File) from the performance section to the restricted section.

2.  The applicant states:

* the Department of the Army Suitability Evaluation Board (DASEB) previously recommended the transfer of his GOMOR to the restricted section of his AMHRR; however, the Deputy Director of the Army Review Boards Agency (ARBA) rejected the Board's recommendation
* in rejecting the DASEB's recommendation, the Deputy Director, ARBA, stated the transfer of his GOMOR was not in the best interest of the Army and it had not yet served its intended purpose
* he (the applicant) knows the intended purpose has been served and the Army's best interests are not being served, despite the Deputy Director's contention
* because of his GOMOR, and more specifically its location in the performance section of his AMHRR, he has been non-selected for promotion twice
* by regulation, Soldiers who are non-selected twice for promotion must be separated and cannot become members of the U.S. Army Reserve or Army National Guard without a waiver – he requested a waiver but it was denied
* because there is a critical shortage of CH-47 (Chinook) Maintenance Test Pilots in the Regular Army (RA), a Call to Active Duty was recently disseminated to all Reserve component CH-47 qualified pilots
* his separation only exacerbates the shortage of CH-47 pilots in the RA
* he was wrong and he made poor judgment calls – he has done all he can to show his remorse and his value to the Army
* what he did was a one-time event and it was totally out of character for him – nothing like this will ever happen again
* he is not a liability to the Army
* he has lost his position, his security clearance is in jeopardy, and he has diminished the capacity and capability of the Nation and the Army that he loves and has served with honor and distinction for almost 15 years
* he humbly asks that the GOMOR be transferred to the restricted section of his AMHRR   

3.  The applicant provided:

* a memorandum from Headquarters, 3rd Brigade Combat Team, Schofield Barracks, HI, dated 9 September 2010, subject: Dismissal of Charges:  United States v. Wainwright
* a memorandum from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 17 June 2011, subject:  Closing of Elimination Action
* 7 different DA Forms 67-9 (Officer Evaluation Report (OER)), covering the period 2 October 2006 through 31 January 2013 
* a memorandum he sent to the President, DASEB, dated 22 January 2012, subject:  Appeal for Transfer of GOMOR from Performance Section to Restricted Section of his AMHRR
* DASEB Docket Number AR20120004358, dated 3 May 2012
* a memorandum he sent to the Commander, Central Clearance Facility, dated 4 February 2013, subject:  Request Granting of Secret Security Clearance
* transcripts from a Board of Inquiry conducted by the 3rd Battalion, 25th Aviation Regiment, 25th Combat Aviation Brigade, on an unknown date
* Six memoranda from commanders and senior warrant officers within the 2nd Battalion (General Support Aviation), 1st Aviation Regiment, 1st Infantry Division, Fort Riley, KS
* Ten letters of support/character references, addressed to the President of the DASEB, from senior officers and warrant officers throughout the Army
* numerous letters of support/character references from senior Army officers, peers, family members and associates within his community
* DA Form 4037 (Officer Record Brief (ORB))

CONSIDERATION OF EVIDENCE:

1.  On 27 November 2002, after previous enlisted service in the RA, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank of warrant officer one (WO1) and entered active duty.  He served in various staff positions within the aviation field; specifically, in military occupational specialty (MOS) 154C (CH-47D (Chinook) Pilot).

2.  On 27 November 2004, he was promoted to the rank of CW2.

3.  On 11 November 2005, he was appointed as a WO in the RA in the rank of CW2.

4.  His record shows he served in Iraq in support of Operation Iraqi Freedom during the period 15 July 2006 through 16 October 2007.

5.  On or about 16 September 2010, the applicant was reprimanded by the Commander, 25th Infantry Division, Schofield Barracks, HI, for acquiring a significant amount of military property from the Defense Resource Management Office (DRMO) at the Contingency Operating Base (COB) Speicher, Iraq, shipping said property to his personal residence in Hawaii, and then later selling many of those items for personal profit on the online auction site, eBay.

6.  The GOMOR stated the reprimand was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).  The imposing officer made no determination regarding the filing of the GOMOR on the applicant's AMHRR, and invited the applicant to submit a response for consideration.  

7.  On 20 September 2010, the applicant acknowledged receipt of the GOMOR.  

8.  On 30 September 2010, he responded to his GOMOR in the form of a 4-page rebuttal with numerous letters of character reference attached as enclosures.   

9.  On 28 October 2010, the Acting Division Commander, 25th Infantry Division reviewed the GOMOR, considered the applicant's response and chain of command recommendations, and directed the GOMOR be filed permanently in the applicant's AMHRR.  The GOMOR was filed in the performance section of his AMHRR.  Additionally, the acting division commander directed his appearance before a board of inquiry to show cause for his retention on active duty.


10.  His case was forwarded to an officer elimination board.  On 7 February 2011, the board recommended the applicant's separation from the Army with an Honorable Discharge Certificate.  On 24 February 2011, the commander of the 25th Infantry Division approved the board's recommendation and forwarded the findings to HRC for further action.

11.  On 1 June 2011, his case was considered by the Army Board of Review for Eliminations, which considered the circumstances involving his case and recommended he be eliminated from the Army with an honorable discharge.  

12.  On 6 June 2011, the Deputy Assistant Secretary of the Army (Review Boards) directed the applicant be retained on active duty in the U.S. Army and reassigned from his current duty location.

13.  On 17 June 2011, HRC notified the applicant his elimination case was closed.

14.  The applicant had been selected for promotion to the rank of chief warrant officer three (CW3) when he received the GOMOR; however, on 27 July 2011, the Secretary of the Army directed his removal from the Fiscal Year (FY) 2009 CW3 Army Promotion Selection List.  

15.  On 5 August 2011, the Chief, Officer Promotions Special Actions, HRC, notified the applicant and informed him that in accordance with Title 10, U.S. Code, section 629, an officer who is removed from a promotion list, then subsequently non-selected for promotion by the next regular promotion selection board, shall be considered to have failed selection for promotion twice.

16.  The applicant petitioned the DASEB to have his GOMOR transferred to the restricted section of his AMHRR.  On 3 May 2012, the DASEB considered his petition and voted to remove the GOMOR from his AMHRR.  However, on 
20 June 2012, the Deputy Director, ARBA, rejected the board's decision and recommendation and denied his request.  The DASEB decision memorandum, Record of Proceedings, and allied documents are filed in the performance section of his AMHRR.

17.  He was considered by the FY12 CW3 Army Promotion Selection Board, which convened on 23 April 2012 and recessed on 4 May 2012; however, he was non-selected for promotion.

18.  On 1 March 2013, he was honorably discharged from the Army in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-9, by reason of two-time non-selection for promotion by a Headquarters, Department of the Army centralized board.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 14 years, 5 months, and 16 days of total active service prior to separation.

19.  He provides numerous documents submitted as attachments to his petition for relief, including copies of his OERs, appeals to transfer his GOMOR, a request for a Secret security clearance, and numerous letters of support/character references.  These documents show he performed admirably while on active duty and earned the respect of his seniors, subordinates, and peers alike.  

20.  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.

21.  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 section.  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 chapter 7 of Army Regulation 600-37.  Paragraph 7-2 (Policies and standards) 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. 

22.  Army Regulation 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, a 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.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the transfer of his GOMOR within his AMHRR, from the performance section to the restricted section.

2.  The evidence of record shows the applicant received a GOMOR in September 2010 for acquiring military property from the DRMO at COB Speicher, Iraq, shipping said property to his personal residence in Hawaii and then later selling certain items for personal profit on eBay.  He was afforded the opportunity to review all of the evidence against him and submit matters on his own behalf prior to a final filing decision.  

3.  Despite compelling letters of support written on his behalf, the GOMOR was referred for filing in the performance section of his AMHRR.  He petitioned the DASEB for transfer of the GOMOR to the restricted section of his AMHRR; however, the Deputy Director of ARBA denied his request.

4.  The GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  Given the relatively short elapsed time and the seriousness of the misconduct, it is determined that the GOMOR has not served its intended purpose.

5.  After a comprehensive review of the evidence in the applicant's AMHRR, the applicant's contentions and arguments, and the evidence submitted in support of his application, other than his dissatisfaction, the applicant did not show by clear and convincing evidence that his GOMOR contains a material error, inaccuracy, or injustice.  Therefore, there is insufficient evidence to grant the requested relief in this case.

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 that 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)                                         AR20110018542



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ABCMR Record of Proceedings (cont)                                         AR20130004460



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