BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130022205 


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) and all allied derogatory documents be removed from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states the GOMOR was imposed after he received a driving while intoxicated (DWI) charge on 27 July 2007.  On 25 September 2009, the County Superior Court, Cumberland County, NC, dismissed the DWI charge and citation.  The GOMOR places him at high risk for [non]promotion and/or separation from the U.S. Army.  The Department of the Army Suitability and Evaluation Board (DASEB) approved the transfer of the GOMOR from his performance portion of his AMHRR to the restricted portion of his AMHRR.  He wished the deletion of the GOMOR from his AMHRR because promotion board are authorized to view all restricted files.

3.  The applicant provides:

* the GOMOR, dated 24 July 2007 and allied documents
* a DASEB decision, dated 16 January 2009
* a document from the County Superior Court, Cumberland County, NC, dated 25 September 2009
* a letter from his attorney, dated 30 September 2009



CONSIDERATION OF EVIDENCE:

1.  The applicant currently serves on active duty.

2.  He was appointed as a Reserve Commissioned Officer of the Army at the rank of second lieutenant, Signal Corps, on 2 June 2001.  He was promoted to captain on 1 November 2004.  On 8 December 2006, he was assigned to A Company, 2nd Battalion, 3rd Special Forces Group (Airborne), Fort Bragg, NC.

3.  On 24 July 2007, the applicant was reprimanded via GOMOR from the Commanding General (CG), Headquarters, U.S. Army Special Forces Command (Airborne) Fort Bragg, NC.  The GOMOR was based the applicant being arrested by civilian authorities for DWI.  

4.  The CG stated the evidence showed:

* the applicant failed a field sobriety test
* he refused a breathalyzer test
* he was combative with personnel at the jail where he refused to be fingerprinted

5.  The CG further stated, "You are hereby reprimanded for your flagrant disregard for the law, as well as the safety of your fellow Soldiers and the general public.  Operating a motor vehicle while under the influence of alcohol demonstrates a complete lack of judgment and responsibility.  Your misconduct constitutes a serious departure from the high standards of integrity, professionalism, and conduct expected of an officer of the Command.  It cannot and will not be tolerated.  You have violated a position of trust and have discredited yourself, this Command, and the U.S. Army."

6.  On 17 September 2007, the applicant acknowledged receipt of the GOMOR and elected to submit statements in his own behalf.  

7.  On 24 September 2007, the applicant submitted his response to the GOMOR. He requested that paragraph one of the GOMOR be corrected because it was extremely inaccurate.  A police officer arrested him while he was departing from his parking space and traveling directly to the parking lot exit.  At no time was he driving in circles.  The police officer stopped him in the parking lot, told him to step out of the car, and immediately arrested him without conducting a field sobriety test.  At no point in time was he combative while being apprehended.
He stated that he took full responsibility for his actions and sincerely regretted that he had disappointed his chain of command and his unit.  He was remorseful for his mistake and promised to never again demonstrate such lack of judgment and responsibility.  It was in the best interest of the Army to permit him to learn from the mistake, apply it to his life as a learning opportunity and continue serving proudly.  Since the incident, he had striven to improve himself as a Soldier, officer, citizen, and as a man.  Remedial measures he had taken included: 

* Completed a self-referred Substance Abuse Assessment, 10 July 2007
* Completed the Fort Bragg Safety Division Driver Improvement Training, 21 July 2007
* Completed 8 weeks of Spiritual, Moral and Ethnic Counseling with the 2nd Battalion, 3rd Special Forces Group Chaplain
* Self-referred to the Army Substance Abuse Program for counseling on
21 September 2007
* Successfully completed 20 hours of the XVIII Airborne Corps Alcohol and Drug Prevention and Control Program, as of 5 October 2007  

8.  On 6 December 2007, the CG directed the GOMOR be filed in the applicant's AMHRR.

9.  On 15 December 2008, the applicant petitioned the DASEB to transfer the GOMOR to the restricted section of his AMHRR.  He submitted statements of support from his former supervisors attesting to his character and outstanding duty performance and recommending that the GOMOR be transferred to the restricted section of his AMHRR.  

10.  On 16 January 2009, the DASEB by unanimous vote approved the applicant's request and transferred the GOMOR from the performance section to the restricted section of his AMHRR.

11.  The applicant provided a document from the County Superior Court, Cumberland County, NC, dated 25 September 2009, showing that the DWI charge was dismissed.

12.  On 1 February 2010, he was promoted to the rank of major.

13.  On 25 March 2011, he graduated from the College of Distance Education Command and Staff Program.  

14.  On 17 June 2011, he received a Master of Science degree in Defense Analysis.

15.  From 2012 to 2013, he served as a company commander of a Special Operations Recruiting Company at Fort Bragg, NC.
16.  The applicant's records contain two OER's for the periods 27 December 2009 through 23 May 2012 and 24 May 2012 through 23 May 2013.  The reports show that he received ratings of "Outstanding Performance, Must Promote" from the raters, and ratings of "Best Qualified" from the senior raters.  All of the rating officials recommended him for immediate promotion to the next higher grade.

17.  Since receiving the GOMOR, he has received the Bronze Star Medal and the Meritorious Service Medal. 

18.  There is no record of other derogatory information in the applicant's military service records.

19.  Army Regulation 600-37 (Unfavorable Information) provides, in pertinent part, 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.

20.  A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance section of the AMHRR.  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 AMHRR, the recipient's submissions are to 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.

21.  Army Regulation 600-37, paragraph 7-2 (Policies and Standards), states, in pertinent part, 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. 

22.  Army Regulation 600-8-104 (AMHRR Management/ Records) governs the composition of the AMHRR and states that 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.  Appendix B states the a Letter of Reprimand is filed in the performance section of the Soldier's AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the GOMOR from the restricted section of his AMHRR was carefully considered and it was determined that the evidence is insufficient to support his request.

2.  Evidence of record shows the applicant was arrested by civilian authorities for DWI and refused the breathalyzer test.  Accordingly, he received a GOMOR.  He submitted matters on his own behalf prior to a final filing decision.  After careful consideration of the applicant's case, the imposing CG ordered filing of the GOMOR in the applicant's AMHRR.  

3.  The DASEB approved the applicant's request and transferred the GOMOR from the performance section to the restricted section of his AMHRR.

4.  It is acknowledged the applicant's overall service since the issuance of the GOMOR indicates that he has performed his duties in an outstanding manner and has continued value to the Army.  Notwithstanding the fact the charges were later dismissed, there is no evidence to show why they were dismissed (was it merely policy to dismiss such charges after completing a DWI program?) and there is no evidence to show the applicant did not drive while intoxicated.  It appears that his primary issue with the GOMOR at the time was the information in paragraph 1.  He did not contest the information in paragraph 1, that he actually did operate a motor vehicle while under the influence of alcohol.

5.  The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate.  Once the GOMOR was filed in his AMHRR, it became a permanent record and will not be removed from the AMHRR unless directed by certain agencies, to include this Board.  The GOMOR is properly filed and the applicant has not proven this GOMOR to be either untrue or unjust. 

6.  There is insufficient evidence to support removal of this GOMOR from his records or its transfer from the performance to the restricted folder of his AMHRR.  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 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)                                         AR20130022205





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ABCMR Record of Proceedings (cont)                                         AR20130022205



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