IN THE CASE OF:  

		BOARD DATE:  3 December 2013

		DOCKET NUMBER:  AR20130019167 


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), dated 20 May 2006, from the performance folder of his Army Military Human Resource Record (AMHRR) to the restricted folder.

2.  The applicant states, in effect, he believes the GOMOR has served its intended purpose and he has earned the right to be afforded the opportunities of those of his peers.  He has shown that he is a professional and a great leader which his records before and after the GOMOR show.  He has not let the GOMOR keep him from being the noncommissioned officer (NCO) the Army expects him to be, which is evidenced by his evaluation reports and his accomplishments since receiving the GOMOR.  He states that retention of the GOMOR in his official records is unjust and hinders his promotion to the next higher grade.

3.  The applicant provides four letters of support from members of his chain of command.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 August 1997 for training as a petroleum supply specialist.  He completed his training and has remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 1 February 2005.

2.  On 20 May 2006 while serving in Iraq, he received a GOMOR for sexually harassing Soldiers under his supervision and making repeated unwelcome sexual comments and propositions to Soldiers which included repeatedly asking female junior enlisted Soldiers to have sex with him, leering at them, making offensive gestures to them, and making offensive comments about their physical appearance.  He was the unit's equal opportunity representative at the time.  In his response to the GOMOR, the applicant stated that while he understood that the sexual harassment claims against him were substantiated, the actions he was accused of were completely false.  The imposing officer directed filing the GOMOR in the applicant's official records.

3.  The applicant also received a relief-for-cause NCO evaluation report covering the period 1 December 2005-30 April 2006 and was transferred to another unit.

4.  A review of the applicant's official records shows he subsequently became a field recruiter and his evaluations since receiving his GOMOR have all been outstanding.  He has received no further disciplinary actions to date.

5.  On 8 July 2013, the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR transferred to the restricted folder of his AMHRR based on intent served.  After reviewing the evidence submitted with his application and his official records, the DASEB determined that while he had made some progress in his professional and personal conduct since the imposition of the GOMOR, without more evidence of a compelling nature to show it was in the best interest of the Army to transfer the GOMOR, his request to transfer the GOMOR to the restricted folder of his AMHRR should be denied.  His request was denied on 19 September 2013.

6.  The letters of support from the applicant's chain of command serve to applaud the applicant's character and performance and opine that the GOMOR has served its purpose.

7.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest 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.  It states 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.  Only letters of reprimand, admonition or censure may be the subject of an appeal for transfer to the restricted folder.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will 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.  Appeals submitted under this provision will normally be returned without action unless at least 1 year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

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

8.  Army Regulation 600-37 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR should be moved to the restricted folder 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 filed in the performance folder of his AMHRR based on a determination made by the imposing general officer.

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.  His records show he had an excellent record of performance prior to after he received the GOMOR for an offense that he well should have known was improper.  Additionally, the imposing general officer had a choice at the time to file the GOMOR locally or in his official records.  The applicant had an excellent record of performance prior to the GOMOR and the imposing general officer made the decision to make the GOMOR a matter of record for selection boards and personnel managers to consider.

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

6.  Accordingly, there appears to be no basis to grant his request to move his GOMOR to the restricted folder 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 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)                                         AR20130019167



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ABCMR Record of Proceedings (cont)                                         AR20130019167



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