BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130021223 


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

2.  The applicant states:  

	a.  He received a GOMOR for what he admits was in fact wrong. 

	b.  He performed the sale of his motorcycle to a noncommissioned officer (NCO) without researching and understanding what type of sales are authorized between enlisted Soldiers and officers.

	c.  He failed to enforce the "one-time payment" rule for the agreed price of the motorcycle as the regulation states.

	d.  When the situation was brought to the attention of the Fort Sill, OK, post commander by the legal representative (who found out about the situation because he went to him to ask for advice of the already made sale), he requested to the commanding general that the GOMOR be filed locally.

	e.  In acceptance of what he had done, he stated he recognized the wrong doing but he believed the infraction did not deserve a permanent negative record on his file because of the high possibility of permanently damaging his career. 

	f.  His petition was not granted and the GOMOR was filed permanently in his OMPF.  As a prior enlisted Soldier and as a service member for 11 years, he understands that a GOMOR can result what is known as a "career ender." 

	g.  More than 2 years have passed since the GOMOR was imposed and he has received three officer evaluation reports (OER) showing he has performed positively.  One of the OERs was for a duty position two grades higher than his grade.

	h.  He brought the situation to the attention of the legal office at Fort Drum, NY, and he requested information on what he could do to fix his records and save his career.   When the officer in charge at the Fort Drum legal office read the GOMOR, he was shocked and could not believe the punishment. 

	i.  He received help from them in submitting a request to the Department of the Army Suitability Evaluation Board (DASEB) to transfer the GOMOR to the restricted folder of his OMPF in order to prevent a non-selection in his first look for promotion to captain (CPT).  The reason for the request was "purpose of reprimand letter has been met." 

	j.  The request was denied and the promotion board identified him as an "elimination candidate" due to his non-selection for promotion to CPT on his first look in April 2013.  He was given the option to relinquish his commission or to submit a statement to the promotion board for evaluation and final determination. 

	k.  The post commander at Fort Drum made a recommendation on his statement and recommended an honorable discharge.  He would like to express that he has endured the effects of the GOMOR and he believes the purpose of the GOMOR has been met.  

	l.  He has learned what type of attention to detail he must have as a leader and he believes the situation has helped him lead his subordinates better. 

	m.  He asks that his records be corrected in order to continue to be a successful leader in his military career. 

3.  The applicant provides a GOMOR dated 20 April 2011 and allied documents; DASEB determination and directed action; memorandum dated 15 September 2013, subject:  Show Cause for Initiation of Elimination; and eight letters of recommendation.  



CONSIDERATION OF EVIDENCE:

1.  At the time of submission of this application, the applicant was serving in the Regular Army in the rank of first lieutenant (1LT).  He had prior enlisted service in the Regular Army.  

2.  On 20 April 2011, while serving in the rank of second lieutenant as a member of the 75th Fires Brigade, Fort Sill, OK, he received a GOMOR for engaging in an improper relationship by entering into an ongoing business relationship with an NCO in the 75th Fires Brigade.  

3.  The GOMOR states that in January 2010 the applicant sold a motorcycle to Sergeant (SGT) R.  He arranged a payment plan with SGT R.  SGT R would make an initial down payment after which he would continue to make payments to the applicant through allotments over the course of several months until the balance was paid in full.  While the Army permits certain one-time business transactions between officers and enlisted Soldiers, his arrangement with SGT R was, in essence, that of a creditor and borrower extending over the course of several months.  This constitutes an ongoing business relationship that Army Regulation 600-20 (Army Command Policy) prohibits.  

4.  The GOMOR imposing commander stated the applicant's behavior was unacceptable with that expected of a Soldier in the U.S. Army.  His actions brought discredit upon him, his unit, and the U.S. Army.  The ability of a military organization to accomplish its mission depends upon the professionalism of its Soldiers.  Professionalism encompasses self-discipline and good judgment.  The applicant's conduct showed serious deficiencies in those areas and would not be tolerated.  The commander further indicated that he was imposing the reprimand as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice, and that he could file the GOMOR in the applicant's OMPF; however, he would not make a final filing determination until after reviewing the applicant's response along with the recommendations of his chain of command.

5.  On 28 April 2011, the applicant submitted a response to the GOMOR requesting that it be filed locally.  He contended he did not know that selling his motorcycle to an NCO and holding the note for him was a violation of Army Regulation 600-20.  Further, he contended he asked a legal assistance attorney about the sale document 2 years before the sale of the motorcycle and the attorney indicated that the document was fine.  He stated he believed the attorney was telling him that the whole transaction was okay but he realized, upon further inquiry, he did not mean the whole transaction was acceptable.

6.  On 10 May 2011, after reviewing the reprimand imposed, the matters submitted, as well as the recommendations of the chain of command, the imposing commander directed the filing of the GOMOR in the applicant's OMPF.

7.  A review of the applicant's OMPF revealed the GOMOR in question is currently filed in the performance folder of his OMPF.  

8.  On 22 August 2013, the DASEB denied the applicant's request for removal of the GOMOR imposed on 20 April 2011 from his OMPF and/or transfer of the GOMOR to the restricted folder of his OMPF.  The DASEB noted the following:

	a.  The applicant began experiencing financial difficulties in 2009 caused mainly by his divorce, child support payments, credit card payments, loans, and motorcycle payment.

	b.  He was promoted erroneously to 1LT in November 2010 and he began receiving increased pay.  Since he had been relieved for cause (OER, 20091023- 20100511) and passed over for promotion, he realized the promotion was an error.  Although he was aware of the overpayment, he used the extra money to cover other overdue debts further increasing his financial difficulties.  He was eventually forced to file for bankruptcy in 2011.

	c.  In reference to the sale of the motorcycle, the original price was $12,500 and he was attempting to sell it to the NCO for $8,000 (eventually $6,000).  He still had a balance of $11,600 at the time of the investigation because he had fallen behind on payments.  The NCO was paying the applicant $250 per month and although their contract did not say the full amount would be forwarded to the lien holder, the applicant was sending less than the $250 per month, meaning that when the NCO completed payments to the applicant, the motorcycle would still not be paid off and the applicant would not have been able to turn over ownership to the NCO because the lien would still have been held by the lien holder.

	d.  The applicant did not submit any evidence to refute the findings or to show the sale of the motorcycle was a one-time business transaction.  Further, the applicant misled the NCO into the contract which may have been fraudulent.  He also violated the trust of the NCO by failing to comply with his portion of the contract.

9.  The DASEB concluded the applicant did not submit evidence showing the GOMOR contained a legal error or that it was untrue or unjust.  

10.  He provides a memorandum dated 15 September 2013, subject:  Show Cause for Initiation of Elimination, addressed to the U.S. Army Human Resources Command, in which he attempts to demonstrate that he should not be eliminated from the service based on his performance.  He also provides eight letters of recommendation with dates ranging from 15 August 2005 to 
19 September 2013 that attest to his duty performance as an enlisted Soldier and as an officer.  

11.  Army Regulation 600-20 prescribes the policies and responsibilities of commands, which include the well-being of the force and military discipline and conduct.  Paragraph 4-14 provides that relationships between Soldiers of different ranks are prohibited if they:  

	a.  Compromise, or appear to compromise, the integrity of supervisory authority or the chain of command.

	b.  Cause actual or perceived partiality or unfairness.

	c.  Involve, or appear to involve, the improper use of rank or position for personal gain.

	d.  Are, or are perceived to be, exploitative or coercive in nature.

	e.  Create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.

12.  The regulation further provides that prohibited relationships include ongoing business relationships between officers and enlisted personnel.  This prohibition does not apply to landlord/tenant relationships or to one-time transactions such as the sale of an automobile or house, but does apply to borrowing or lending money, commercial solicitation, and any other type of on-going financial or business relationship.

13.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual OMPF's; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual OMPF's; and ensure that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from the OMPF.  It states unfavorable information that should be filed in the OMPF includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	a.  The regulation 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.

	b.  A GOMOR may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

	c.  Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

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

	e.  If an appeal is denied, a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record.  The appeal will be placed in the restricted folder of the OMPF.

14.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  The OMPF is an administrative record as well as the official permanent record of military service belonging to a Soldier.  Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by the DASEB.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that a GOMOR imposed on 20 April 2011 should be transferred to the restricted folder of his OMPF has been carefully considered.

2.  The evidence of record confirms the applicant was issued a GOMOR on 
20 April 2011 for engaging in an improper relationship with an NCO by entering in an improper business relationship.  The evidence also shows the GOMOR was properly referred to him prior to the filing decision.

3.  As noted by the DASEB, the applicant, a commissioned officer, not only entered into an improper business relationship with an NCO, he also misled the NCO into a contract which may have been fraudulent.  

4.  Among the purposes of filing unfavorable information is the protection not just of the Soldier's interest but the Army's interest as well.  In this case, the applicant committed a serious violation of regulations that clearly could have resulted in an adverse impact on discipline and the ability of the command to accomplish its mission.  His lack of judgment should not go unrecorded in the performance folder of his OMPF simply because he feels the GOMOR will hinder his promotion potential.  

5.  His desire to have the GOMOR transferred from the performance folder of his OMPF is understandable; however, the GOMOR was properly imposed as an administrative measure and filed in the OMPF after an objective decision by competent authority.  This authority ordered the GOMOR filed in his OMPF fully cognizant of the applicable regulations and the net effect of his decision.  The applicant has failed to demonstrate that the transfer of the GOMOR would be equitable or in the best interest of justice and the Army

6.  Based on the foregoing, there is no basis to grant 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)                                         AR20130021223



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ABCMR Record of Proceedings (cont)                                         AR20130021223



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