IN THE CASE OF:	  

		BOARD DATE:	 28 May 2012 

		DOCKET NUMBER:  AR20130005560 


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 reconsideration of the Board's denial of his previous request that a General Officer Memorandum of Reprimand (GOMOR) be removed from his record or transferred to the restricted portion of his Army Military Human Resource Record (AMHRR) (formerly known as Official Military Personnel File).  He also requests removal of a referred DA Form 67-9 (Officer Evaluation Report (OER)) which was not part of his original request. 

2.  He states the GOMOR was placed in his AMHRR before a final disposition of his case in the civilian court system was made.  When his case went to court, it was dismissed in the interest of justice.  His case was dismissed because it was determined the accusations against him were not true.  On 19 January 2013, his case was expunged because there was an absence of probable cause.  Additionally, all financial issues referenced in the GOMOR were resolved long ago and his security clearance was reinstated.

3.  He adds that the motion to dismiss and order of expunction from the court proves he was not guilty.  An Army show cause board found he did not commit acts of personal conduct or acts of conduct unbecoming a commissioned officer.

4.  He provides:

* self-authored memorandum
* letter, dated 23 February 2013, from a squadron operations officer
* letter, dated 1 March 2013, from a commanding officer
* letter, dated 5 March 2013, from an executive officer
* letter, dated 7 March 2013, from a major
* letter, dated 8 March 2013, from a commanding officer
* Order of Expunction
* Board of Inquiry Findings
* two additional DA Forms 67-9

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120003322, on 10 May 2012.

2.  The applicant provides additional documents including a self-authored memorandum, five letters of support, Order of Expunction, and Board of Inquiry Findings as new evidence which warrants consideration by the Board.

3.  On 19 May 1992, he enlisted in the Regular Army.  On 16 April 2008, he was honorably discharged in the rank of sergeant first class/pay grade E-7 to accept a commission.  On the next day he was commissioned as a second lieutenant/O-1.  He has served on active duty since that date.

4.  The performance portion of his AMHRR contains a GOMOR, dated 18 November 2009, signed by Brigadier General (BG) WFG, Deputy Commanding General, Headquarters, III Corps and Fort Hood, TX.  The GOMOR reprimanded the applicant for exhibiting conduct unbecoming an officer.  It states:

* the imposing authority received a report that the applicant assaulted his female roommate by slapping her, pushing her to the ground, and dragging her from their shared residence into the front yard
* the imposing authority had been told he began living with this woman before he was divorced from his spouse
* the applicant had demonstrated an inability or unwillingness to meet his financial obligations

5.  The GOMOR stated that, by victimizing his female companion while intoxicated and enraged, he failed in his duty to act responsibly, exercise mature judgment, lead by example, and exhibit exemplary behavior.

6.  The GOMOR directed him to reflect on his conduct and take the necessary steps to control his anger and gain control of his personal affairs.
7.  BG WFG stated the GOMOR was an administrative measure and was not punishment imposed pursuant to the Uniform Code of Military Justice.  He was provided a copy of the GOMOR and the attached investigation, and advised that he could submit matters in rebuttal, extenuation, or mitigation within 10 calendar days.  He was further advised that failure to respond would be considered a waiver of this right.  BG WFG stated he would consider anything the applicant submitted before making his decision on filing the memorandum in his AMHRR.  

8.  The investigation provided to the applicant as an attachment to his GOMOR is not available for review.

9.  On 4 December 2009, he signed a memorandum, subject: Acknowledgment of Unfavorable Information.  He indicated he had received the GOMOR.  The memorandum provided two options regarding whether or not he intended to submit statements or documents in rebuttal, extenuation, or mitigation.  He indicated he did not intend to submit statements or documents in rebuttal, extenuation, or mitigation.  Both options advised him of his entitlement to seek legal advice.  By signing the memorandum, he further indicated he understood the GOMOR could be filed in his AMHRR, local unit file, or both, at the direction of a general officer.

10.  His record includes an undated memorandum signed by BG WFG showing he considered the circumstances surrounding the reprimand.  BG WFG noted the applicant was given the opportunity to respond and he elected not to do so.  
BG WFG directed the GOMOR be filed permanently in the applicant's AMHRR.

11.  The performance portion of his AMHRR contains five DA Forms 67-9.

	a.  The DA Form 67-9 for the period ending 7 October 2009 shows the OER was referred to him and he elected not to make comments.  

		(1)  The form shows his rater marked "no" for integrity under the Army Values section of the form and marked "other" in the section for the rater's evaluation of his potential for promotion.  His rater entered the statement that the applicant was arrested for domestic violence on 29 August 2009.  His rater also stated his security clearance had been revoked, thereby preventing his eligibility for promotion to the next higher grade or his continued service as a commissioned officer.  

		(2)  His senior rater marked "other" in the section for the senior rater's evaluation of his potential for promotion.  His senior rater entered the following comments regarding his performance/potential:  "Average performance.  Although [the applicant] had potential to excel, he quickly reversed his potential when he lost his security clearance for failure to maintain financial responsibilities and later was arrested for domestic violence against a civilian lady who co-habitated [sic] with him.  I have disapproved his promotion to [first lieutenant (1LT)/O-2].  This officer has no future in our Army."

	b.  He received outstanding performance ratings on DA Forms 67-9 covering the rating periods ending 7 October 2010, 30 October 2011, and 7 February 2013. 

	c.  He received a satisfactory performance rating on the DA Form 67-9 for the period ending 7 February 2012.

12.  On 20 June 2011, Headquarters, U.S. Army Human Resources Command (AHRC), Fort Knox, KY, issued Order Number 171-016 promoting him to 
1LT/O-2 effective 30 July 2010.

13.  On 8 June 2011, the Department of the Army Suitability Evaluation Board (DASEB) informed the applicant that there was insufficient evidence to justify removal of unfavorable information from his AMHRR or transfer the unfavorable information to the restricted portion of his AMHRR.  The DASEB Record of Proceedings shows the analyst assigned to the applicant's case noted the box for "the evidence is insufficient" was not selected in the Motion to Dismiss and that the phrase "in the interest of justice" could be "used for a variety of reasons to terminate the charge(s) against the appellant."  

14.  He provides:

	a.  A Board of Inquiry Findings Worksheet, dated 5 May 2011, stating the board found there was not sufficient evidence to prove the applicant committed acts of personal misconduct (one voting member indicated there was sufficient evidence).  The board of inquiry further found there was not sufficient evidence to prove the applicant's acts could be considered conduct unbecoming a commissioned officer.  

	b.  An Order of Expunction, dated 16 January 2013, stated the court considered the motion for rehearing on agreed motion for expunction of the applicant, which the court found should be granted.  The court found with respect to the "ACBI-FV" charge against the applicant, that he was entitled to expunction.  The court ordered several agencies, to include to the Copperas Cove Police Department, Coryell County Attorney's and Clerk's Office, and FBI, to return all records and files concerning that charge to the court pursuant to the expunction order or if removal was impractical, obliterate all references to the petitioner (applicant) and notify the court of its actions.
	c.  Five letters of recommendation from superior commissioned officers strongly endorsing approval for removal or transfer of the GOMOR and referred OER from his records.

	d.  A Closing of Show Cause Action - [Applicant] memorandum, dated 6 March 2013.  It stated a U.S. Army Human Resources Command (AHRC) memorandum, dated 7 December 2012, had directed him to show cause for retention on active duty because of misconduct, moral, or professional dereliction.  It further stated that on 5 May 2011 he was approved to be retained on active duty.

15.  In his self-authored memorandum, he states:

	a.  He did not submit a rebuttal to the GOMOR because he was unable to consult with counsel on the matter.  He was falsely accused of the alleged crime which was ultimately dismissed by the court.

	b.  His case was dismissed in the interest of justice by the Coryell County Court.  The DASEB found it significant that, in the Motion to Dismiss, the Coryell County Attorney checked the box for "in the interest of justice" rather than "the evidence is insufficient."  He asks that the Board consider the fact that the allegations against him were unfounded and the case was dismissed.  This aspect of the GOMOR is untrue and unjust, and it should be removed from his AMHRR under the provisions of Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a. 

	c.  The GOMOR incorrectly asserts he was intoxicated.  There is no basis for this statement, because he was not intoxicated.  

	d.  The GOMOR stated he was to take steps to control his anger, so he completed a 6-hour Stress and Anger Management Workshop.

	e.  With regard to his financial issues leading to his losing his security clearance, during his marriage he was the sole provider for his family and his wife was the budgeter and financial payer of bills.  This occurred during his deployment to Iraq.  The main reason for the bills not being paid in his opinion was apathy on her part and his not knowing.  He knows he must exercise self-control, great judgment, and a willingness to abide by rules and regulations.  He slipped and didn't pay attention to what was going on in his own home financially.  All financial issues referenced in the GOMOR were resolved and his security clearance was reinstated on 30 July 2010.  He is now divorced and has total control over his finances.  He has since purchased a home, his credit is good, and his clearance will not be a problem again.
	f.  BG WFG stated he expected the applicant's future behavior to be exemplary.  He has taken this to heart, and his OERs reflect this.  He has been a successful 1LT since 30 July 2010 and he asks the Board to "clear up" his record so he can live up to the potential his chain of command sees in him.

	g.  Alternatively, in accordance with Army Regulation 600-37, paragraph 7-2b, he asks that the GOMOR be moved to the restricted portion of his AMHRR.  The referred OER and reprimand have served their intended purpose and it would be in the best interest of the Army.  The inaccurate reprimand has kept him from being promoted and its removal will allow him to continue his military career.  These documents are over 3 years old, and he has received four strong evaluations since they were filed.  Since the imposition of the GOMOR, he has shown he has taken the reprimand to heart by performing and excelling at every task he has been given.

16.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	a.  The regulation 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 filing determination is made.

	b.  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 Army Regulation 600-37, chapter 7.

	c.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the AMHRR.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  Such documents may be appealed on the basis of proof 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.

	d.  If an appeal is denied, a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record.  The appeal will be placed in the restricted section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The available records do not show evidence of error or injustice in the GOMOR the applicant received or the decision to file the GOMOR in the performance portion of his AMHRR.  

2.  The record shows BG WFG had the results of an investigation upon which to base his decision to impose the GOMOR and make a filing decision.  Absent evidence showing otherwise, it must be presumed the GOMOR accurately summarizes the behavior for which it was imposed based on the information available at the time.

3.  A Board of Inquiry later found there was not sufficient evidence to prove the applicant committed acts of personal misconduct or to prove his acts could be considered conduct unbecoming a commissioned officer.  He was approved to be retained on active duty.

4.  Since receiving the GOMOR, he has been promoted to 1LT, he has performed above standards during three of four rating periods, his security clearance has been restored, and he has completed a stress and anger management workshop.  He also provides five letters of recommendation from superior commissioned officers strongly endorsing approval for removal or transfer of the GOMOR and referred OER from his records.

5.  The county court dismissed the charge against him.  The District Court issued an expunction order regarding all references to the applicant’s arrest and/or 


alleged offenses.  The dismissal is not evidence the GOMOR was inaccurate. The standard of proof for conviction in a civilian court is not the same as that required to justify imposition of a GOMOR.  The expunction is not sufficient evidence that the GOMOR was inaccurate; however, this action does raise a question of whether, in the absence of any record of civilian criminal charges and in light of the findings of the Board of Inquiry, the continued presence of the GOMOR in the performance portion of his AMHRR is now inequitable.  

6.  In view of the foregoing, there is an insufficient basis to warrant removal of the GOMOR from his AMHRR.  However, it appears the GOMOR may have served its intended purpose and it would be in the best interest of the Army to transfer the GOMOR and all allied documents, including the DASEB and ABCMR memoranda denying his request, to the restricted portion of his AMHRR.

7.  Since there is no evidence to show the GOMOR contains erroneous information, the available records do not show evidence of error or injustice in the referred OER with an ending date of 7 October 2009.  Therefore, there is an insufficient basis to warrant removal of the referred OER from 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 was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number Docket Number AR20120003322, dated 10 May 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the GOMOR and all allied documents, including the DASEB and ABCMR memoranda denying his request, to the restricted portion 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 referred OER 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)                                         AR20130005560



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ABCMR Record of Proceedings (cont)                                         AR20130005560



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