BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20140010205 


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 the General Officer Memorandum of Reprimand (GOMOR), dated 12 September 2008, from the restricted folder of his Official Military Personnel File (OMPF)
* reinstatement to the Fiscal Year 2008 (FY 08) Master Sergeant (MSG)/E-8 Promotion Selection List
* promotion to MSG/E-8 and payment of all back pay and allowances
* consideration by a standby advisory board (STAB) for promotion to sergeant major (SGM)/E-9

2.  The applicant states:

* the GOMOR was written based on a citation that was unfounded and the case against him was dismissed by the County Court Judge at pre-trial
* since the GOMOR was written based on unsubstantiated allegations, it should be removed in accordance with Army Regulation 600-37 (Unfavorable Information)
* the purpose of Army Regulation 600-37 is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete are not filed and when appropriate, are removed

3.  The applicant provides:

* Self-authored letter
* Contested GOMOR and rebuttal
* Department of the Army Suitability Evaluation Board (DASEB) decision
* Court dismissal of citation
* Enlisted Record Brief
* Noncommissioned Officer Evaluation Reports (NCOER)
* Award certificates and orders
* Letters of support
* Sleep apnea medical document
* Letter to the U.S. Army Human Resources Command (HRC) for restoration to the FY 08 Promotion List
* HRC decision to remove him from the E-8 promotion list
* Notification of Separation Under the Qualitative Service Program (QSP)
* Photograph

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) sergeant first class (SFC).  He enlisted in the RA in March 1994 and he holds military occupational specialty 13F (Fire Support Specialist).  

2.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Iraq and Afghanistan, and he was promoted to SFC/E-7 in July 2003.  At the time of his incident, he was assigned to Fort Bragg, NC.   He was selected for promotion to MSG/E-8 by the FY 08 Promotion Board and his name was placed on the promotion list. 

3.  On 12 September 2008, he was reprimanded by his Commanding General (CG) at Fort Bragg, NC for operating a motor vehicle while intoxicated.  The GOMOR stated: 

	a.  On 24 August 2008, he was arrested and cited by a Kentucky police officer for operating a motor vehicle while under the influence of alcohol.  The offense occurred while he was in a temporary duty status.  He was administered a breathalyzer test that yielded a blood alcohol content of 0.10 percent.

	b.  His conduct was inexcusable.  The Army and his command have consistently emphasized the dangers of driving after consuming alcohol.  In committing this offense, he exercised extremely poor judgment.  His disreputable actions were inconsistent with the high standards expected of him as an NCO. 

4.  On 29 October 2008, he acknowledged receipt of the GOMOR and elected to submit a rebuttal statement.  In his rebuttal, he: 

* acknowledged his failure to exercise proper care and placing his life and career at risk
* stated at the time of his arrest, he had no intention of driving his vehicle; he intended to sleep until the sun rose and then return to his hotel room
* added that since his arrest, he had visited two psychiatrists whose assessment was that he was not alcohol dependent
* attended the Fort Bragg Alcohol and Drug Abuse Prevention course in an effort to become better aware/informed
* accepted the consequences of his actions but did not believe this incident should curtail his advancement or career 
* requested to be allowed to continue his service and the GOMOR be locally filed 

5.  On 19 November 2008, his senior commander recommended the contested GOMOR be filed in the performance folder of his OMPF.  The senior commander opined that the command continually emphasized the importance of safety.  The applicant’s decision to drink and drive demonstrated a complete lack of concern for the safety of others.  As a senior NCO with 14 years of service, his chain of command expected more from him.  He made a poor choice which resulted in this incident.  However, given his record, it is recommended the filing be reconsidered in 2 years.  

6.  On 23 April 2009, a Christian County District Judge ordered the dismissal of the applicant’s “operating a motor vehicle under the influence of alcohol."  He stated "Dismissed, officer no longer with Oak Grove [Police Department] and has not produced video evidence after three subpoenas were issued.”  

7.  On 17 June 2009, by a liaised memorandum to the applicant’s chain of command, the Chief of Enlisted Promotions at HRC stated that a Department of the Army Enlisted Standby Advisory Board (STAB) that convened on 17 June 2009 recommended to the Director of Military Personnel Management (DMPM) approval to remove the applicant’s name from the FY 08 MSG Promotion Selection List. 

8.  On 23 September 2009, after careful consideration of the applicant's case and his rebuttal, the imposing CG ordered the filing of the GOMOR in the applicant's OMPF.  The GOMOR was filed in the performance folder of his OMPF.

9.  On 20 November 2013, in response to his petition to the DASEB to transfer the contested GOMOR from the performance to the restricted folder of his OMPF, the DASEB reviewed his case and determined that:

* the GOMOR was neither improper nor untrue; however, the intended purpose had been served
* its transfer to the restricted folder would be in the best interest of the Army and the Soldier
* this action is not retroactive and does not constitute grounds for promotion reconsideration 

10.  As a result of the DASEB decision, the contested GOMOR and allied documents were transferred from the performance to the restricted folder of his OMPF. 

11.  Since his incident, he received/was awarded: 

* Multiple NCOERs in various leadership positions, reflecting ratings of "Excellence" and "Among the Best" performance by his raters and "Successful" and "Superior" ratings by his senior raters
* The Bronze Star Medal in 2008, Meritorious Service Medal in 2012, Joint Service Commendation Medal in 2012, and Army Good Conduct Medal (5th Award) in 2009 and (6th Award) in 2012
* his units were awarded two awards of the Valorous Unit Award in 2012
* he was awarded multiple badges

12.  During April and May 2014, the applicant and his chain of command submitted multiple requests, endorsements, and letters of support to the DASEB requesting the removal of the contested GOMOR and to HRC requesting a STAB.  Multiple senior officers and NCOs opined that:

* the applicant had suffered in that he received a GOMOR, was removed from the promotion standing list, and lost some special pay
* the civilian charges against him were dropped/dismissed based on the judge’s review and lack of evidence
* since his incident, he has served with distinction, received multiple awards, completed several deployments, and received excellent ratings

13.  On 29 April 2014, a legal assistance officer of the Fort Lee, VA military community recommended restoration of the applicant’s grade to MSG/E-8.  He restated the events and provided a legal analysis and argument in favor of the applicant. 

14.  On 21 May 2014, the successor CG of the same unit of the CG that imposed the GOMOR recommended the applicant’s records be considered by a STAB citing the dismissal of the civilian charges.  The CG also recommended the applicant’s reinstatement to the FY 08 promotion list and consideration for promotion to SGM/E-9. 

15.  On 14 March 2014, by a liaised memorandum to the applicant’s chain of command, the Director of Enlisted Personnel Management at HRC stated that a Department of the Army QSP convened and in its comparative judgment of future potential, determined he was among those selected for separation by the QSP. The memorandum advised him that he must separate no later than 1 March 2015. 

16.  Army Regulation 600-37 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.

17.  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.  Paragraph 7-2 provides that 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, the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

18.  Army Regulation 600-37 states only letters of reprimand admonition or censure may be the subject of an appeal for transfer to the restricted fiche.  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.

19.  Army Regulation 600-8-104 (Army Military Human Resource Record 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 section of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board).

20.  Army Regulation 600-8-19 (Enlisted Promotions or Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.

	a.  Paragraph 4-13 (Rules for processing STAB) states the Army G-1 or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier’s OMPF when the file was reviewed by a promotion board.  For the purpose of this paragraph, HRC is a designee.  An error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.  STABs are convened to consider records of those (1) Soldiers whose records were not reviewed by a regular board; (2) Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board; (3) Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list; and other reasons pertaining to appointment to command sergeant major.   Soldiers selected by a STAB will be added to the appropriate recommended list and promoted along with their contemporaries when their seniority sequence number is reached.  Reconsideration normally will be granted when one or more condition (listed as 1 through 11) existed on the Soldier’s OMPF at the time it was reviewed by a promotion selection board.  

	b.  Paragraph 4-17 (Removals from a centralized promotion list by Headquarters, Department of the Army) states HRC will continuously review promotion lists against all information available to ensure that no Soldier is promoted where there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform duties of the higher grade.  A Soldier may be referred to a STAB when a memorandum of reprimand placed in the OMPF or when adverse documentation is filed in the OMPF.

	c.  Paragraph 4-18 (Appeals of removal from a centralized promotion list) states a Soldier who is removed from a promotion list may appeal that action only in limited circumstances.  HRC will take final action on any appeal.  Soldiers may appeal a removal action when the underlying basis of the removal is subsequently determined to be erroneous.  The subsequent determination must be based on facts that were not available or reasonably discoverable at the time of the original action or at the time that the Soldier was notified of the removal action.  An appeal may also be submitted for other compelling reason(s).  Appeals must be referred through command channels, to include a General Court-Martial Convening Authority to Commander, HRC. 


DISCUSSION AND CONCLUSIONS:

1.  With respect to the GOMOR, dated September 2008: 

	a.  The applicant, a senior NCO, was arrested by civilian police for the criminal offense of DUI with a high breath alcohol content.  He was holding the rank/grade of SFC/E-7 at the time.  Accordingly, he received a GOMOR.  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.  He in effect admitted to the offense when he acknowledged his failure to exercise proper care and stated that he had intended to sleep until the sun rose and then return to his hotel room.  After careful consideration of the applicant's case and his rebuttal, the imposing CG ordered the filing of the GOMOR in the performance section of his OMPF. 

	b.  He petitioned the DASEB for its transfer.  The DASEB determined the GOMOR was neither improper nor untrue; however, the intended purpose had been served, its transfer to the restricted folder would be in the best interest of the Army and the Soldier, and that this action is not retroactive and does not constitute grounds for promotion reconsideration.  Accordingly, the DASEB transferred the GOMOR to the restricted folder of his OMPF.  

	c.  Although a judge dismissed his case at a later date, the quality of a Soldier’s service is affected by conduct that is of a nature to bring discredit upon the Army or that is prejudicial to good order and discipline.  Notwithstanding the reason the judge dismissed his case, he provides insufficient evidence to show he did not commit the offense.  The applicant was an SFC, in a position of trust and authority.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  Here, the applicant violated that trust.  

	d.  Once the GOMOR was filed in his OMPF, it became a permanent record and will not be removed from or moved to another part of 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.  There is insufficient evidence to support removal of this GOMOR from his records.  Therefore, he is not entitled to the requested relief.

2.  With respect to his reinstatement to the promotion list:

	a.  The available evidence shows the applicant was selected for promotion by the FY08 promotion board and his name was placed on the promotion list.  However, he was referred to a STAB when the GOMOR was placed in his OMPF and the STAB recommended his removal from the promotion list.  The DMPM approved the recommendation and he was no longer promotable.  There is neither an error nor an injustice.  

	b.  Since he was removed from the list, he was no longer promotable and thus had to wait for the following promotion board to consider and/or select him.  He was not selected by a subsequent promotion board.  Therefore, he was not promoted which means he is not entitled to any back pay or allowances. 

3.  With respect to his promotion consideration to SGM, since he continues to hold the rank/grade of SFC/E-7 and since his removal from the promotion list was neither arbitrary nor capricious, he is currently ineligible for promotion consideration to SGM/E-9. 

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)                                         AR20140010205



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ABCMR Record of Proceedings (cont)                                         AR20140010205



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