IN THE CASE OF: 

		BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20130011898 


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 transfer of the following documents filed in the performance folder of his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File) to the restricted folder:

* general officer memorandum of reprimand (GOMOR), dated 31 July 2007
* Department of the Army Suitability Evaluation Board (DASEB) memorandum, dated 12 March 2009

2.  The applicant states:

* the reprimand has served its intended purpose and granting his request would be in the best interest of the Army
* following his reprimand in 2007, he continued to serve in Iraq and was removed from a position of greater responsibility
* he received an "Above Center Mass" evaluation despite the reprimand and the reprimand was not mentioned in the report
* on 25 August 2013, he appeared before a board of officers to show cause that he should be retained in the Army and the board voted to retain him
* transfer of the reprimand to the restricted folder of his AMHRR would be consistent with the board's decision that he has learned from his mistake and that he continue his service in the Army
* he graduated from the Command and General Staff Course where his instructor commented he had "demonstrated outstanding leadership attributes and competencies in several positions of key responsibility"
* he served in a demanding job as Squadron Executive Officer (XO) where he was rated as "best XO" in the brigade by his senior rater
* he is now deployed to Afghanistan
* he understands the serious mistake he made and sincerely regrets the pain and grief he caused his family and the Army
* he and his wife have overcome their difficulties and have put the incident behind them through their trust and love for one another and their family
* had he understood the procedure, he would have contested the veracity of the testimony supporting the reprimand

3.  The applicant provides:

* self-authored statements
* DASEB memorandum, dated 12 March 2009
* AMHRR extracts
* four letters of support

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 27 May 1995, the applicant was appointed as a second lieutenant (2LT) under the Reserve Officers’ Training Corps Early Commissioning Program while he attended Marian Military Institute in Alabama.  On 25 August 1995, he was appointed as a 2LT in the Army National Guard.

3.  On 1 November 2006, the applicant was promoted to the rank/grade of major/O-4.

4.  On 31 July 2007, the applicant received a GOMOR for wrongfully engaging in an inappropriate relationship with a female U.S. Navy lieutenant (LT) from on or about 12 March through 6 July 2007.

5.  On 9 August 2007, the applicant acknowledged receipt of the GOMOR.

6.  On 12 August 2007, the applicant submitted statements in his own behalf, accepted responsibility for his inappropriate relationship with the U.S. Navy LT, acknowledged he understood the seriousness of his error, and apologized for his actions.  He requested filing the GOMOR locally.

7.  On 15 August 2007 after considering the circumstances surrounding the reprimand and recommendations of the applicant's chain of command, the GOMOR-imposing authority directed permanently filing the GOMOR in his AMHRR.

8.  On 20 November 2008, the applicant appealed to the DASEB for the transfer of his GOMOR to the restricted folder of his AMHRR.

9.  On 12 March 2009, the applicant was notified by the DASEB that his request was denied.

10.  On 12 March 2009, the DASEB notified the U.S. Army Human Resources Command of its decision and directed adding a copy of the notification memorandum to the performance folder of the applicant's AMHRR and the Record of Proceedings to the restricted folder of the applicant's AMHRR.

11.  A review of the applicant's AMHRR shows both the GOMOR and DASEB memorandum, dated 12 March 2009, are properly filed in the performance folder of his AMHRR.

12.  On 2 November 2012, the applicant was directed to show cause for his retention on active duty because of his misconduct, moral or professional dereliction.

13.  On 21 December 2012, the applicant requested a Field Board of Inquiry (FBOI).

14.  On 11 January 2013, the general officer with show-cause authority appointed an FBOI.

15.  On 25 March 2013, the FBOI was conducted and approved on 29 March 2013.  The FBOI determined the applicant should be retained on active duty without reassignment.

16.  A review of the applicant's officer evaluation reports show:

* the report covering the period the GOMOR was issued does not refer to the incident in question
* he has been consistently rated "Outstanding Performance, Must Promote" and "Best Qualified"
* he received an "Above Center Mass" rating for his report ending 14 February 2008

17.  The applicant provided four letters of support, to include one from his wife, that attest to his overall work performance and ability to overcome his misconduct.

18.  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.

19.  A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and will be filed in the performance folder.  The direction for filing will be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the AMHRR, the recipient's submissions will 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.

20.  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.

21.  Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  The above 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the GOMOR and DASEB memorandum, dated 12 March 2009, transferred to the restricted folder of his AMHRR was carefully considered.

2.  The GOMOR was issued based on the applicant's lapse in judgment that resulted in an inappropriate relationship with a U.S. Navy LT.  This misconduct resulted in a degradation of good order and discipline within the applicant’s military unit.  His conduct was inexcusable and his actions brought discredit to himself, the officer corps, and the Army.  The GOMOR was simply a natural consequence of his actions.

3.  He argues that transferring the GOMOR to the restricted folder of his AMHRR would be consistent with the show-cause board's decision to retain him and that his performance supports transfer of the GOMOR.  These arguments do not demonstrate that the GOMOR has served its intended purpose or that it should be transferred to the restricted folder of his AMHRR.  A Soldier's achievements seldom outweigh integrity violations.

4.  In view of the above, there is no evidentiary basis for granting the requested relief.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that the GOMOR achieved its purpose and relief should be granted by transferring it to his restricted folder.  The Board found nothing in his subsequent evaluations to indicate anything other than outstanding judgment and performance.  

2. Therefore, the Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the GOMOR, dated 31 July 2007, and the DASEB memorandum, dated 12 March 2009, be transferred from the performance folder of his AMHRR to the restricted folder.



      __________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.









SAMR-RB									  29 August 2013


MEMORANDUM FOR Commander, US Army Human Resources Command, 
1600 Spearhead Division Avenue, Department 100, Fort Knox, KY 40122-5100 

SUBJECT:  Army Board for Correction of Military Records Record of Proceedings for AR20130011898


1.  Reference the attached Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 27 August 2013, in which the Board recommended, in a unanimous decision and contrary to the staff DISCUSSION AND CONCLUSIONS, to grant relief.

2.  The Board accepted the applicant's contention that his general officer memorandum of reprimand (GOMOR), dated 31 July 2007, had served its purpose.  The Board found nothing in his subsequent evaluations to indicate anything other than outstanding judgment and performance.  The Board therefore believed the GOMOR and the related Department of the Army Suitability Evaluation Board memorandum, dated 12 March 2009, should be transferred from the performance folder of his Army Military Human Resource Record to the restricted folder.

3.  I have reviewed the findings, discussion, recommendation, and reasons for the Board's recommendation to grant relief to the applicant's request.  I accept the Board’s proper exercise of its discretion to grant relief in this case and have decided to adopt the Board's recommendation to grant relief by transferring the GOMOR and DASEB memorandum to the applicant's restricted file.

4.  Therefore, under the authority of Title 10, U.S. Code, section 1552, the recommendation of the ABCMR is hereby approved, and I direct that all the Department of the Army records of the individual concerned be corrected as shown under BOARD DETERMINATION/RECOMMENDATION in the Record of Proceedings in the subject case enclosed.

5.  Request necessary administrative action be taken to effect the correction of records as indicated no later than 28 October 2013.  Further, request that the individual 







SAMR-RB						
SUBJECT:  Army Board for Correction of Military Records Record of Proceedings
for AR20130011898


concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl						     W. A. SHATZER
						     Acting Deputy Assistant Secretary
						     (Army Review Boards)

CF: 
(X)AMHRR