IN THE CASE OF:	  

		BOARD DATE:	    27 August 2013

		DOCKET NUMBER:  AR20130006525 


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 removal of a general officer memorandum of reprimand (GOMOR), dated 20 July 2006, from the restricted section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File. 

2.  The applicant states that the record is unjust in that if allowed to remain in the restricted section of his AMHRR, he will not be able to serve with continued distinction past the rank of lieutenant colonel (LTC).  He has already been passed over for promotion to the rank of major once.  Since the issuance of the GOMOR he has not only served with distinction, but has set himself apart from his peers in every way.  The filing decision arose from a time in the unit’s history, not just his individual transgression.  Additionally, the continuation of punishment not only unduly harms his career but it deprives the Special Operations Forces of his ability to serve with continued distinction.  He also states that the imposing officer wholeheartedly supports his request.

3.  The applicant provides copies of his Officer Record Brief (ORB), a letter of support from the issuing officer, officer evaluation reports, awards, and college transcripts.

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 1 June 2006, while the applicant was serving as a Special Forces captain and detachment commander, a GOMOR was issued to him for driving under the influence (DUI).  After being able to submit matters in his own behalf, the commanding general (CG) directed that the GOMOR be filed in the applicant’s AMHRR on 20 July 2006.

3.  The applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) and on 21 November 2007 the DASEB granted the applicant’s request to transfer the GOMOR to the restricted section of his AMHRR.

4.  The applicant was promoted to the rank of major on 2 October 2008.

5.  The letter provided by the imposing officer who is now retired states that based on the applicant’s subsequent performance and dedication and his ability to learn from his mistakes, he requests that the GOMOR be removed from the applicant’s AMHRR.  He goes on to state that the GOMOR has served its purpose.  Continuation of the punishment not only unduly harms his career, it also deprives the Special Operations Forces of his ability for greater service. 

6.  A review of his official records shows no additional derogatory information filed in the performance section of his AMHRR.  His evaluations show that he has continued to excel in his performance as a Special Forces officer. 

7.  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 section is used for historical data that may normally be improper for viewing by selection boards or career managers.  Documents in this section 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 section is controlled and will not be released without written approval from the U.S. Army Human Resources Command CG or the Department of the Army Headquarters selection board proponent.

8.  Army Regulation 600-37 (Unfavorable Information) serves as the authority for filing unfavorable information in the AMHRR.  It states a nonpunitive 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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR should be removed from the restricted section of his AMHRR based on intent served and because it impedes his career progression has been noted and appears to lack merit.

2.  The GOMOR was only filed in the performance section of his AMHRR for 
16 months before he convinced the DASEB that it should be moved to the restricted section of his AMHRR.  He is basing his request on what he speculates will occur in his career in the future and not based on any actual facts or evidence.

3.  The Army has an interest in maintaining such documents and the applicant has not shown sufficient reasons why it should not remain a matter of record, even after considering his entire record.

4.  While his record shows that he has an excellent record of performance, he was serving as a commander at the time he received the GOMOR for an offense that he well should have known was improper.  Additionally, the imposing commander also had a choice at the time to either file the GOMOR locally or in his official records.  The applicant had an excellent record of performance prior to the GOMOR and the imposing officer made the decision to make the GOMOR a matter of record for selection boards and personnel managers to view. 

5.  The imposing officer (now retired) comes to the Board stating that the Board should removed the GOMOR because of the applicant’s performance and what he can contribute to Special Operation Forces; however, he does not explain why he chose to file the GOMOR in the applicant’s AMHRR to begin with nor does he adequately explain why that decision is now the wrong decision, since he is requesting to have the GOMOR removed in its entirety.  His rationale appears to be indicative of retrospective thinking on his part.

6.  The imposing officer stated the GOMOR has served its purpose, but he did not say that it was untrue or unjust.  Intent served is a reason for transferring a GOMOR to the restricted section of the AMHRR, but removal requires the GOMOR to have been untrue or unjust.

7.  The available evidence clearly shows the applicant's conduct was not the conduct expected of a commissioned officer and commander with the years of service and experience he had and violated the trust placed in him as a leader and an officer.  

8.  Accordingly, there appears to be no basis to grant his request to remove his GOMOR from the restricted section of 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 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)                                         AR20130006525





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ABCMR Record of Proceedings (cont)                                         AR20130006525



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