BOARD DATE:   5 March 2014

		DOCKET NUMBER:  AR20130011143 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the General Officer Memorandum of Reprimand (GOMOR), dated 9 March 2009, from the applicant's Army Military Human Resource Record (AMHRR).  In the alternative, counsel requests the Board advise the Adjutant General (TAG), Minnesota Army National Guard (MNARNG) to review the GOMOR for removal from the applicant's records.  

2.  Counsel states:

	a.  The applicant received a GOMOR on 9 March 2009.  The issuance of the GOMOR was unjust under the circumstances and it should be removed from the applicant's records.  

	b.  He received the GOMOR for driving under the influence of alcohol (DUI).  His mother had just died from brain cancer.  He attended her funeral the day before he entered the Survival, Evasion, Resistance and Escape (SERE) course in late January 2009. 

	c.   Attending SERE training right after the funeral did not allow the young applicant to decompress and properly grieve for his mother.  The rigors of the training and separation from the security of his family resulted in him not receiving the guidance and support he sorely needed at such a difficult time.  
	d.  The applicant works for ITT Exelis as a contractor in Afghanistan.  His record with Exelis is outstanding.  He has received several awards including a certificate of appreciation for his duty in Kosovo.  His duties include personal force protection and security.  These are high stress duties he has performed in very difficult circumstances.

	g.  Retaining the GOMOR in the applicant's record is unjust.  At the time of the incident he was under extreme stress from his mother's death.  Since that time he has proven that he can handle himself properly in high stress situations. 

	h.  He is actively searching for a position with the U.S. Army Reserve (USAR) and the GOMOR makes that difficult.  His performance in a combat zone has been outstanding.  He has certainly proven himself an asset to the United States. 

	i.  The applicant was extremely disappointed with himself when he drove after drinking.  His failure to uphold standards led to his removal first from flight training and later the MNARNG.  Now that almost five years have passed, removal of the GOMOR is appropriate.  

	j.  The GOMOR threatens his ability to move forward in his civilian employment.  He has accepted that his DUI incident has impacted his career.  

	k.  He previously requested removal of the GOMOR without success.

	l.  The DUI does not reflect the applicant's true character as a man and a Soldier.  His selection to attend Warrant Officer School, and then flight training resulted from his outstanding career.  Then, simply put, he reacted poorly to his mother's death.  He should have taken the time necessary to grieve with his family.  His dedication to duty drove him to return immediately to training so he could complete flight training on time.  Clearly returning immediately to flight school was a mistake.  The extreme circumstances should have been considered and resulted in a lesser administrative punishment for the applicant.  After almost 5 years, whatever usefulness the GOMOR might have served has most certainly passed.

3.  Counsel provides:

* 9 March 2009 GOMOR and allied documents
* GOMOR removal requests and allied documents
* awards received from ITT Exelis
* copies of applicant's military personnel records
* applicant's personal statement

CONSIDERATION OF EVIDENCE:

1.  Following prior enlisted service, the applicant was appointed as a warrant officer one (WO-1)/W-1 in the MNARNG effective 7 October 2008.

2.  On 7 August 2008, he was ordered to ADT for the period 19 August 2008 to 30 September 2009.  The purpose is shown as:  "ATTEND WOCS PHASES 
1 & 2 & IERW COURSE."

3.  On 9 March 2009, the Commanding General (CG), Headquarters, U.S. Army Aviation Center of Excellence, Fort Rucker, Alabama, reprimanded the applicant for driving under the influence and refusing to give a breath sample.  The GOMOR states the applicant was stopped by the military police for excessive speed.  He admitted having 3 or 4 beers.  He failed field sobriety tests, was transported to the Provost Marshal Office, where he refused to give a breath test. 

4.  He acknowledged receipt of the reprimand on 10 March 2009.  There is no record that he submitted a rebuttal. 

5.  His immediate and intermediate commanders recommended the GOMOR be filed in the AMHRR.  

6.  On 21 April 2009, the CG ordered the GOMOR be placed permanently in the applicant's AMHRR.  

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty training (ADT) on 7 October 2008 and he was released from ADT on 13 March 2009.  The reason for the separation is:  completion of period of ADT.  The remarks block shows that his removal from training will be coded as "STATE RECALL" due to "PERSONAL ISSUES." 

8.  On 21 December 2009, the applicant submitted a DD Form 149 (Application for Correction of Military Records under the Provisions of Title 10, U.S. Code, Section 1552) requesting removal of the GOMOR from his AMHRR.  On 
5 August 2010, he was notified that he had to seek the relief through the Department of Military Affairs, MNARNG.

9.  On 9 September 2010, the applicant submitted a request for removal of the GOMOR to the Minnesota Department of Military Affairs.  On 15 October 2012 the J1 Army Personnel Chief, Officer of the Adjutant General, Joint Force Headquarters Minnesota, notified him that his request was denied.

10.  A 20 February 2013 MNARNG letter notified the applicant's counsel that the Office of the Staff Judge Advocate, Joint Force Headquarters Minnesota, had received and reviewed a request for removal of the GOMOR.  As their records indicated the applicant had been discharged from the MNARNG and he would have to petition the ABCMR for removal of the GOMOR.  

11.  Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, states 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.  Paragraph 7-2b(1) states that unfavorable documents may be appealed on the basis of proof that 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.

12.  Army Regulation 600-8-104 (AMHRR) governs the composition of the AMHRR and states the performance section 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.  Table 2-1 states administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through counsel, the GOMOR, dated 9 March 2009, should be removed from his AMHHR, or in the alternative, the Board advise the MNARNG TAG review the GOMOR for removal from the applicant's records.  

2.  The evidence of record shows the applicant was cited by law enforcement agencies for driving under the influence of alcohol.  Accordingly, he received a GOMOR.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  His chain of command provided their recommendations and after carefully considering the circumstances surrounding the incident, along with the recommendations of subordinate commanders, the CG ordered the GOMOR be placed permanently in the applicant's AMHRR.  

3.  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.

4.  The applicant was released from active duty 4 days after the imposition of the GOMOR.

5.  The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of his AMHRR.  There is insufficient evidence of an error or an injustice.  

6.  After review of counsel's contentions and arguments, the evidence does not show by clear and convincing evidence that the GOMOR contains a material error, inaccuracy, or injustice.  Therefore, he is not entitled to the 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 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)                                         AR20120006481



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ABCMR Record of Proceedings (cont)                                         AR20130011143



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