BOARD DATE:	  9 July 2014

		DOCKET NUMBER:  AR20130018669 


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 a general officer memorandum of reprimand (GOMOR) from the performance folder to the restricted folder of his Official Military Personnel File (OMPF).

2.  The applicant states that since he received the GOMOR he has served as an operations sergeant (a master sergeant (MSG)/E-8 position) and deployed in support of a counter-narco terrorism mission that received a commendation from the U.S. Drug Enforcement Agency (DEA) and the Ambassador to Peru.

	a.  His chain of command selected him to deploy with a Colombian Special Operations Forces unit to advise and assist in a Colombian direct-action mission against a DEA and Colombian military high-value target.  Recently, he was selected over several other senior noncommissioned officers (NCO's) to serve as a Special Forces team sergeant (a MSG/E-8 position).  In this position, he served with distinction for 26 months, 8 of which were in combat, and he was awarded the Bronze Star Medal for valor for saving the lives of Afghan soldiers during a near ambush.

	b.  He adds that the GOMOR has significantly lowered his chances for promotion during the past three MSG selection boards.

	c.  The general officer who issued the GOMOR, along with his past and present chains of command, believes the GOMOR has served its intended purpose.  In addition, he learned the (then) detachment commander (a captain) and another senior NCO (now a warrant officer) who also were issued GOMOR's for the same incident have had their GOMOR's transferred to the restricted folders of their OMPF's.

3.  The applicant provides the following documents in support of his request:

* GOMOR and rebuttal with battalion commander's letter
* Enlisted Record Brief
* seven letters of support

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the Regular Army in the rank of sergeant first class (SFC)/E-7 in military occupational specialty 18B (Special Forces Senior Weapons Specialist).  He was promoted to SFC effective 1 January 2006.

2.  On 25 February 2010, Major General M____ S. R____, Commander, U.S. Army Special Forces Command (Airborne), Fort Bragg, NC, issued a GOMOR to the applicant for violating U.S. Central Command (CENTCOM) General Order Number 1B (Possession or Consumption of Alcoholic Beverages Within the CENTCOM Area of Responsibility) on 12 November 2008 by consuming alcohol while deployed to Afghanistan.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.

3.  On 26 February 2010, the applicant acknowledged receipt of the GOMOR and he submitted his response on 1 March 2010.

	a.  He accepted full responsibility for his actions and acknowledged there was no justification for his actions.  He added that his poor decision was an isolated incident that he is not proud of and will not be repeated.

	b.  He provided information concerning his military career and the success of his operational detachment's participation in back-to-back deployments in support of Operation Enduring Freedom.

	c.  He requested filing of the reprimand locally.

4.  On 22 April 2010 after considering the applicant's response, the approving authority directed filing the GOMOR in the applicant's OMPF.

5.  The GOMOR, dated 25 February 2010; referral document; applicant's response; and filing directive are filed in the performance folder of the applicant's OMPF.

6.  The applicant was in the primary zone for consideration for promotion to MSG beginning in Fiscal Year (FY) 2010.

7.  On 23 August 2012, the applicant submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) for the transfer of the GOMOR to the restricted folder of his OMPF because it had served its intended purpose.  He provided a summary of his achievements and assignments since receiving the GOMOR.  He acknowledged that he failed his comrades and noted that, despite that failure, he remains an extremely competent NCO.  He also provided copies of three NCO Evaluation Reports (NCOER's), his Bronze Star Medal with "V" Device for valor on 30-31 May 2007, and several letters in support of his petition.

8.  The DASEB Record of Proceedings, dated 12 April 2012, shows, in part:

	a.  The NCOER covering the period the applicant was reprimanded does not make any reference to his misconduct.

	b.  Twenty-six months had elapsed since the applicant received the GOMOR and:

* there was no other derogatory information in his records
* he had received two additional NCOER's that assessed him as "Among the Best" with "Successful/Superior" ratings and recommendations for promotion to MSG
* he provided supporting statements from his chain of command
* he had been considered once for promotion in the primary zone

	c.  The DASEB determined the evidence presented did not provide substantial evidence that the GOMOR had served its intended purpose and/or that its transfer would be in the interest of the Army.  Accordingly, the applicant's request was denied.

	d.  The DASEB decision memorandum, dated 22 May 2012, is filed in the performance folder of his OMPF.  The DASEB Record of Proceedings, dated 12 April 2012, is filed in the restricted folder of his OMPF.

9.  The applicant was awarded the Bronze Star Medal with "V" Device and 1st Oak Leaf Cluster for heroism on 16 January 2013 while serving as the operations sergeant at Kandahar Airfield, Afghanistan, in support of Operation Enduring Freedom.

10.  Two additional NCOER's covering the periods 19 January 2012 through 18 January 2013 and 19 January 2013 through 30 September 2013 show the applicant was assessed as "Among the Best" with "Successful/Superior" ratings and recommendations for promotion to MSG.

11.  The applicant provided the following additional documents in support of his request.

	a.  Five letters in support of the applicant's request recommend transfer of the GOMOR from the performance to the restricted folder of his OMPF.

		(1)  A letter from Major General M____ S. R____, Commander, Fort Bragg, NC, dated 26 September 2013, the general officer who issued the GOMOR, shows he reviewed the appeal packet prepared by the applicant, he believes the GOMOR has served its intended purpose, and recommends transfer of the GOMOR from the performance to the restricted folder of the applicant's OMPF as being in the best interest of the Army.

		(2)  A letter from Colonel C____ N. R____, Commander, 7th Special Forces Group (Airborne), U.S. Army Special Forces Command (Airborne), Eglin Air Force Base, FL, undated, shows he strongly supports transfer of the GOMOR to the restricted folder of the applicant's OMPF.  He states the applicant is one of the best SFC's in the group and the GOMOR has achieved its desired effect because the applicant has become a better NCO because of it.

		(3)  A letter from Lieutenant Colonel P____ T. C____, Commander, 1st Battalion, 7th Special Forces Group (Airborne), U.S. Army Special Forces Command (Airborne), Eglin Air Force Base, FL, dated 28 August 2013, shows he strongly supports transfer of the GOMOR to the restricted folder of the applicant's OMPF.  He states he personally selected the applicant to serve as the operations sergeant on Special Forces Operations Detachment Alpha (SFODA) 7125, a position only filled by the most competent NCO's.  He notes the applicant has excelled in the MSG position and he has been nominated to receive the National Defense Industrial Association Special Operations/Low-Intensity Conflict Superior Achievement Award.

		(4)  A letter from Major A____ P. B____, Operations Officer, 1st Battalion, 7th Special Forces Group (Airborne), U.S. Army Special Forces Command (Airborne), Eglin Air Force Base, FL, dated 26 August 2013, shows he strongly supports transfer of the GOMOR to the restricted folder of the applicant's OMPF.  He states the applicant planned and executed over 80 combat patrols in the Panjwai District and his performance as operations sergeant of SFODA 7125 during Operation Enduring Freedom was outstanding.

		(5)  A letter from Sergeant Major M____ F. L____, Command Sergeant Major, 1st Battalion, 7th Special Forces Group (Airborne), U.S. Army Special Forces Command (Airborne), Eglin Air Force Base, FL, dated 26 August 2013, shows he strongly supports transfer of the GOMOR to the restricted folder of the applicant's OMPF.  He notes the applicant has exhibited the maturity, experience, and competence to operate in joint, combined, and interagency environments without supervision and has proven himself in positions of increased responsibility in both wartime and continental U.S. missions.  He adds that the applicant is among the most valued senior NCO's in the regiment.

	b.  Two letters from his former battalion and brigade commanders, both dated 24 August 2011, were previously submitted to the DASEB by the applicant and recommend transfer of the GOMOR to the restricted folder of his OMPF.

12.  A review of the U.S. Army Human Resources Command website shows the applicant was considered for promotion in the primary zone of the following MSG promotion selection boards (PSB):

* FY10 MSG PSB – not selected
* FY11 MSG PSB – not selected
* FY12 MSG PSB – not selected
* FY13 MSG PSB – not selected
* FY14 MSG PSB – selected and assigned sequence number 00032

13.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), in effect at the time, provided policies, operating tasks, and steps governing the OMPF.  Depending on the purpose, documents would be filed in the OMPF in one of three folders:  performance, service, or restricted.

	a.  Table B-1 (Authorized Documents) provided guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature.  It shows the letter/memorandum, referral correspondence, member's reply, and allied documents (if they are specifically directed for filing by the letter or referral correspondence) would be filed in the performance folder of the OMPF unless otherwise directed.  All other allied documents not listed would be filed in the restricted folder of the OMPF.

	b.  The restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this folder is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army selection board proponent.  Documents in the restricted folder of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

14.  Army Regulation 600-37 (Unfavorable Information) 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 Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.

	b.  Paragraph 7-2b (Appeals for Transfers of OMPF Entries) contains guidance on transfers of OMPF entries.  It states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.

		(1)  Appeals will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.  Appeals approved under this provision will result in transfer of the document from the performance folder to the restricted folder of the OMPF.

		(2)  GOMOR's may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR filed in the performance folder of his OMPF should be transferred to the restricted folder of his OMPF because it has served its intended purpose.

2.  The evidence of record shows the GOMOR, referral document, applicant's response, and filing directive are properly filed in the performance folder of the applicant's OMPF.

3.  The applicant's request for transfer of the GOMOR filed in the performance folder of his OMPF has been carefully considered and is found to have merit.  By regulation, if at least 1 year has elapsed since imposition, an appeal related to a GOMOR can be approved based on proof the GOMOR has served its intended purpose and that the transfer would be in the best interest of the Army.

	a.  The evidence of record shows the incident for which the GOMOR was issued was based on an isolated lapse in judgment on the part of the applicant more than 5 years ago.  The applicant's professionalism, character, leadership attributes, skills, and actions since the time of the incident, as documented by his NCOERs and awards, show the applicant has learned and grown, both personally and professionally.

   b.  The evidence of record shows that senior leaders in the applicant's former and current chains of command offer their endorsement of the applicant's personal character and professionalism, attest to his worth and potential as an Army NCO, and advocate his continued service in the U.S. Army in positions of increasing responsibility.  In addition, they all strongly recommend transfer of the GOMOR from the performance to the restricted folder of the applicant's OMPF.

   c.  On 26 September 2013, the general officer who issued the GOMOR reviewed the applicant's appeal.  He concluded that the GOMOR has served its intended purpose and recommends transfer of the GOMOR from the performance folder to the restricted folder of the applicant's OMPF as being in the best interest of the Army.

   d.  Therefore, there is substantial evidence to conclude that it would serve the best interest of the U.S. Army to grant the requested relief by transferring the GOMOR and all related documents to the restricted folder of his OMPF which might assure the U.S. Army the benefit of the applicant's continued service.

4.  In view of the facts of this case, it would be appropriate to transfer the GOMOR, dated 25 February 2010, and all allied documents to the restricted folder of his OMPF.  As a result of this correction, it would also be appropriate to transfer the Army Review Boards Agency memorandum, dated 22 May 2012, from the performance folder to the restricted folder of his OMPF.



BOARD VOTE:

__X______  ____X____  __X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the GOMOR, dated 25 February 2010; all allied documents; and the Army Review Boards Agency memorandum, dated 22 May 2012, to the restricted folder of his OMPF.

2.  This Record of Proceedings and associated documents will also be filed in the restricted folder of the individual's OMPF.

3.  This action by the Army Board for Correction of Military Records will not be grounds for promotion reconsideration under any prior FY MSG PSB's.



      ____________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)                                         AR20130018669



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ABCMR Record of Proceedings (cont)                                         AR20130018669



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