IN THE CASE OF: 

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20140009521 


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 removal of a general officer memorandum of reprimand (GOMOR) and any associated documents from his records.

2.  The applicant states:

* there are discrepancies as to how long he was marked with unauthorized leave
* he departed his mother's house on 27 July 2004 and returned to his base on 1 August 2004
* he was unable to get back to his base any earlier due to flight unavailability to Operation Iraqi Freedom
* his mother had a second stroke within a year of being readmitted back into the hospital while he was on emergency leave 
* he remained in contact with his rear detachment commander the entire time, explaining he needed additional time to move her household goods to a suitable location
* in 2004, he submitted an initial rebuttal and included copies of emails from his rear detachment commander to his chain of command
* he also stated for clarity the actual number of days accused, yet he still received a GOMOR with inaccurate days annotated and without an investigation of his statement
* his last guidance from his company commander was to take care of his mother
* since he was an only child and his mother was unmarried, he had to move her by himself and his rear detachment commander was aware of this
* his mother is currently on dialysis, disabled, and living in an assisted living home 
* to date, he still provides her full living arrangements
* his rebuttal was never investigated so he gave the details of his case directly to the issuing authority who now agrees that the GOMOR should be removed as well as his brigade commander at the time who is now a major general
* he accepts responsibility for his actions and consequences that resulted in the GOMOR
* since his commissioning, he has given 100 percent of his efforts to Soldiers and his command and volunteering to serve in the hardest positions
* he desires to make the military a career and to serve with an unaffected record

3.  The applicant provides:

* self-authored statements
* Officer Record Brief (ORB)
* Letter from Major General (Ret) J.B., dated 19 March 2014
* three DA Forms 67-9 (Officer Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  After having prior honorable enlisted service, the applicant accepted an appointment as a Reserve commissioned officer as a second lieutenant on 2 June 2001.

2.  On 2 December 2002, he was promoted to first lieutenant.

3.  On 1 September 2004, he received a GOMOR for being absent without leave (AWOL) for 13 days during the period 22 July 2004 through 5 August 2004.

4.  On 6 September 2004, the applicant provided a rebuttal wherein he indicated he failed to take appropriate measures to ensure his request for an extension was approved and at the time, he acted out of concern for his mother.  He took the additional time to move his mother out of her place into another and he coordinated a live-in nurse.  He also expressed his desire for an opportunity to work past his mistake and continue to serve and to have the GOMOR filed in his local file.

5.  On 14 September 2004, after reviewing the applicant's rebuttal and considering all matters available and the recommendations by his chain of command, the commanding general directed filing the GOMOR in the applicant's official military personnel file (OMPF).

6.  On 16 June 2005, the applicant submitted a request to have his flag lifted so he could be promoted to the rank of captain.  He again accepted full responsibility for his action and the consequences that resulted.  He further stated he remained in constant contact with his rear detachment commander during the period of AWOL.  On or about 20 August 2004, his Brigade S1 told him that he was to remain flagged until 26 April 2005; however, a brigade legal representative advised him the flag should have been lifted shortly following the issuance of his GOMOR.  On or about 5 April 2005, he questioned his brigade commander about the flagging action and it was immediately removed.  The applicant stated he believed the guidance given by the Brigade S1 was deliberate with the intention to permanently damage his career since his flag was carried for 8 months without being reviewed. 

7.  On 24 November 2005, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for transfer of the GOMOR from the performance section to the restricted section of his OMPF.  On 10 January 2006, the DASEB approved his request.  The GOMOR remains in the restricted section of his OMPF.

8.  On 1 December 2010, the applicant was promoted to major.

9.  The applicant provides self-authored statements explaining the circumstances leading to his AWOL status and a letter from his commanding general at the time, who now supports removal of the GOMOR.  He also provides a copy of his ORB and copies of three OERs, for the period 18 March 2010 through 1 September 2012, which show he was rated outstanding and best qualified.

10.  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.

11.  A memorandum of reprimand 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 section.  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.

12.  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.  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 OMPF.

13.  Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  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.

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.  Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the GOMOR and any associated documents was carefully considered.

2.  He received a GOMOR for being AWOL.  He was afforded the opportunity to review the reprimand and to submit matters in his own behalf prior to a final filing decision and he did so.  After careful consideration of the applicant's case and his rebuttal, the imposing general officer ordered the filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the restricted section of his OMPF.

3.  The OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

4.  It is acknowledged the applicant has continued to honorably serve and without incident.  Nevertheless, the Army has an interest in maintaining the integrity of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  The fact that these documents have affected his promotion opportunities is a natural outcome of his behavior/performance.  There is a reluctance to remove adverse information from an OMPF when it was not erroneously filed.  

5.  The GOMOR is properly filed and the applicant has not proven this GOMOR to be either untrue or unjust.  There is insufficient evidence to support removal of this GOMOR and associated documents from his OMPF.

6.  In view of the foregoing evidence, the applicant 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)                                         AR20140009521



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ABCMR Record of Proceedings (cont)                                         AR20140009521



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