IN THE CASE OF:	

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130010480 


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 reinstatement as a promotable master sergeant, be allowed to graduate with class number 63 of the U.S. Army Sergeants Major Academy (USASMA), and be allowed to continue on his assignment as a Command Selection List candidate for 2014.  He further requests removal of a DA Form 1059 (Academic Evaluation Report), dated 26 February 2013; General Officer Memorandum of Reprimand (GOMOR); and all other derogatory material from his records.

2.  The applicant states he was dismissed from the USASMA for committing a class C misdemeanor (disorderly conduct), which is a minor infraction punishable by fine only.  He goes on to state that out of 647 students at the USASMA he is certain that many have been served with greater offenses than class C misdemeanors and even after the installation Judge Advocate General (JAG) officer recommended they exercise their power in accordance with Army Regulation 350-1, paragraph 3-14e(2), the commandant disregarded the recommendation and dismissed him from the USASMA.  Accordingly, he desires the Board to evaluate the hasty actions by the commandant and reverse the actions that have occurred as a result of his decision.

3.  The applicant provides:

* three pages of explanation of his application
* a memorandum of support from his legal assistance attorney


* a copy of an incident report
* counseling forms
* his dismissal from the USASMA
* his court documents regarding his sentence
* his appeal of his dismissal
* his DA Form 1059
* recommendations from his chain of command and his appeal
* a copy of the Fiscal Year 2014 Command Sergeants Major (CSM) Command Slating List (CSL)
* third-party letters of support

CONSIDERATION OF EVIDENCE:

1.  After serving in the U.S. Navy, the applicant enlisted in the Regular Army on 17 August 1989.  He remained on active duty through a series of continuous reenlistments and he was promoted to the pay grade of E-8 on 1 August 2006.

2.  On 29 January 2013, the applicant was notified he was being considered for dismissal from the USASMA due to his willful discharge of a firearm within city limits.

3.  The applicant appealed the dismissal; however, on 26 February 2013, he was dismissed from the USASMA (Class 63) for misconduct.  He was issued a DA Form 1059 indicating he failed to achieve course standards.

4.  Although the applicant has not provided and his official records do not contain a copy of his GOMOR, his record contains a memorandum, subject:  Administrative Memorandum of Reprimand Filing Determination, (applicant's name), USASMA, Fort Bliss, TX, dated 21 March 2013, wherein the commanding general directed the GOMOR be filed in his Official Military Personnel File (OMPF), now known as the Army Military Human Resource Record (AMHRR).

5.  The applicant signed his application to the Board on 17 May 2013 and
Class 63 of the USASMA graduated on 21 June 2013.

6.  Army Regulation 600-37 (Unfavorable Information) sets forth the basic authority for filing of unfavorable information in the AMHRR.  It provides, in pertinent part, that a nonpunitive MOR or admonition would be filed in the AMHRR only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction of the recipient.


7.  Army Regulation 350-1 (Army Training and Leader Development) provides in pertinent part, in paragraph 3-14 that students may be dismissed from courses for inappropriate personal conduct.  No formal adjudication of guilt by a military or civilian court or by a commander is necessary to support dismissal under this paragraph.  Students will be counseled by their chain of command and afforded the opportunity to submit an appeal of the dismissal action within 7 days of the dismissal action.  Dismissals for misconduct will be recorded on the individual’s DA Form 1059. 

DISCUSSION AND CONCLUSIONS:
1.  Although not presently filed in his AMHRR, the GOMOR was properly imposed in compliance with applicable regulations and it was properly directed to be filed in the performance section of his AMHRR.

2.  Additionally, his DA Form 1059 is properly filed in the performance section of his AMHRR.

3.  The applicant’s contention that he was unjustly dismissed from the USASMA has been noted and appears to lack merit.  The applicant has failed to show through the evidence submitted and the evidence of record that his dismissal from the USASMA was in violation of Army regulations or that the commandant did not have the authority to dismiss him for his misconduct.

4.  In fact, the available evidence shows that his dismissal was accomplished in accordance with the applicable regulation with no indication of any violations of the applicant’s rights.

5.  While the applicant contends his offense did not warrant dismissal from the course, he has failed to provide sufficient evidence to show he was treated differently than others under similar circumstances.  Therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130010480



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ABCMR Record of Proceedings (cont)                                         AR20130010480



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