IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140011246 


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:

	a.  Reconsideration of his earlier request for removal of the following documents from his official military personnel file (OMPF):

* General Officer Memorandum of Reprimand (GOMOR), dated 
23 April 1998
* DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 24 April 1998

	b.  In the alternative, if removal is not permitted, he requests the documents be transferred to his restricted file.

2.  The applicant states, in effect:

* he does not believe the Board's decision fully addressed his initial request
* the GOMOR should be removed because the supporting documentation contains untrue elements
* the GOMOR was unjust considering the misconduct it addressed was an isolated incident
* a host of injustices have directly resulted as a result of the GOMOR, to include his improper discharge from the Army



3.  The applicant provides:

* self-authored statement
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) (AR20130004108)
* GOMOR
* DA Form 1059, dated 24 April 1998
* two Army Discharge Review Board (ADRB) Case Reports and Directives (AR20130013218 and AR20120018057)
* extract from Army Regulation 600-37 (Unfavorable Information)
* DA Form 4856 (General Counseling Form)
* memorandum, dated 21 April 1998, issued by Company B, 3rd Battalion, 1st Special Warfare Training Group (Airborne)
* two-page extract from the Manual for Courts-Martial addressing Articles 112 and 134 of the Uniform Code of Military Justice (UCMJ)
* two letters of support
* letter from the U.S. Office of Personnel Management (OPM)
* Résumé
* college and university transcripts
* Standard Form 50 (Notification of Personnel Action)
* award certificate
* three civilian employee appraisals
* Recommendation Form for the Nonresident Graduate Degree Program, Naval War College, College of Distance Education
* award nomination
* two emails
* letter from Headquarters Allied Land Command (LANDCOM)
* online article, HillVets, recognizing the applicant as Person of the Quarter
* divorce decree

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130004108, on 5 November 2013.

2.  The applicant submits new evidence and arguments which warrant consideration by the Board.

3.  Having prior enlisted service, the applicant was appointed as a Reserve commissioned officer and executed an oath of office on 31 July 1987.

4.  He was subsequently appointed as a second lieutenant in the Illinois Army National Guard (ILARNG) and executed an oath of office on 19 August 1987.  He completed the Cannon Field Artillery Course at Fort Sill, OK.

5.  He was honorably separated from the ILARNG on 27 July 1990 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

6.  On 25 July 1991, he was considered for promotion to captain (CPT) by the 1994 Reserve Components Selection Board (RCSB), but he was not selected.  He was considered for promotion to CPT by the 1995 RCSB and he was selected for promotion.

7.  On 13 April 1998, he was enrolled in Phase II of the Civil Affairs Officer Advanced Course at the U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), Fort Bragg, NC.

8.  On 21 April 1998, a military police officer submitted a statement indicating the applicant had been administered an alcohol-sensor breath test and his blood alcohol concentration was determined to be .21 percent.  The military police official opined the applicant was under the influence of an alcoholic substance.

9.  On 21 April 1998, in a memorandum to the Commander, 3rd Battalion, 1st Special Warfare Training Group (Airborne), USAJFKSWCS, the applicant's immediate commander, requested the applicant's relief (nonacademic) from the Civil Affairs Officer Advanced Course by reason of misconduct.

10.  The applicant acknowledged receipt of the notification of relief from the course and indicated he did not intend to appeal.

11.  On 22 April 1998, the applicant was counseled by his chain of command for being "drunk on duty" and lying about having a death in the family.  The applicant's commander recommended his referral to the Army Drug and Alcohol Prevention and Control Program, that he be released from the Civil Affairs Officer Advanced Course, and that he receive a GOMOR.

12.  On 23 April 1998, the Commander, 3rd Battalion, 1st Special Warfare Training Group (Airborne), USAJFKSWCS, ordered the applicant's relief from the course in accordance with USAJFKSWCS Regulation 350-12 (Reliefs, Recycles, and Retraining of Resident Students and International Military Students), paragraph 2-3(8), by reason of misconduct.


13.  The applicant's DA Form 1059, dated 22 April 1998, shows he attended the Civil Affairs Officer Advanced Course from 13 to 24 April 1998.  Item 13 (Performance Summary) shows the entry "Failed to Achieve Course Standards."  Item 16 (Comments) states, "[Applicant] was relieved from the course on day seven (21 April 1998) due to an alcohol related incident.  [Applicant] was found in his room intoxicated (.21 breathalyzer) when he was supposed to be in class."  This form was prepared and authenticated by the course manager and reviewed and authenticated by the commander.  There is no indication the applicant received a copy.

14. On 23 April 1998, he received a written reprimand from the Commanding General (CG), USAJFKSWCS for misconduct.  The GOMOR stated:

On 23 April 1998, you failed to report to the B Company Commander's office as you were required to do.  The B Company Commander discovered you intoxicated in your room.  You had a blood alcohol content of .21%.  Your failure to report for duty as a result of previous overindulgence in intoxicating liquor (emphasis added) violates Article 134, UCMJ.  Additionally, you misled the Commander about a relative's death.  This conduct was unbecoming of an officer under Article 133, UCMJ.  You have violated a position of trust and have discredited yourself, the U.S. Army, and this command.  Your actions cause me to question your future value to the Army.  This reprimand is imposed as an administrative measure (emphasis added) and not as punishment under the UCMJ.

15.  On 23 April 1998, the applicant acknowledged receipt of the GOMOR and indicated he wished to submit a statement in his behalf.  His statement is not available for review.

16.  After careful consideration of the facts and circumstances pertaining to the applicant, the imposing CG directed permanent filing of the GOMOR in the applicant's OMPF.

17.  On 21 January 1999, the applicant was discharged from the USAR under honorable conditions (general) by authority of Army Regulation 135-175 (Separation of Officers), paragraphs 2-12(n) (Failure to Meet Standards in a Course of Instruction at a Service School Due to Disciplinary Reasons) and paragraph 2-12(o) (Conduct Unbecoming an Officer).  The applicant's discharge packet is not available for review.


18.  After denying the applicant's initial request for an upgrade of his discharge, and following a personal appearance by the applicant, on 10 February 2014, the ADRB directed the characterization of the applicant's service to be changed to honorable.  The board did not grant the applicant's request to change the narrative reason for separation.  The board determined the characterization of service was improper based on the applicant not being afforded a separation board.  The board further determined the reason for discharge was both proper and equitable (emphasis added).

19.  The applicant provides a self-authored statement wherein he essentially asserts his arguments as to why his request should be granted.

	a.  The Board's response in the ROP for AR20130004108 did not adequately address his claims of impropriety and inequity.  

* the analyst flatly declared his conduct, as addressed by the GOMOR, to be "inexcusable" and, in essence, he (the applicant) should have known better
* the analyst marginalized the request for removal made by the officer (now retired) who imposed the GOMOR
* since his initial application his situation has changed in that the ADRB has upgraded his discharge from general under honorable conditions to honorable
* the basis for the ADRB's action was a finding that his discharge was improper
* he contends the GOMOR should be removed, given the ADRB's finding, the GOMOR must now be considered "fruit of the poisoned tree"  

	b.  He provides the background which led to his discharge.  He states, following the receipt of the GOMOR, he was returned to the 416th Civil Affairs Battalion, his USAR Troop Program Unit (TPU).  The newly-arrived commander initiated separation action and subsequently discharged him improperly 9 months after the incident.  The three ROPs prepared in response to his requests (two with the ADRB and one with the ABCMR), are all centered around the same isolated incident.  There were no other instances of misconduct in his career.

	c.  Much of the ROP for Docket Number AR20130004108 is devoted to exhaustively recounting the facts of his case and detailing the regulations and details governing the filing of derogatory information.  None of this is in dispute.  

	d.  The analyst states he (the applicant) did not prove the GOMOR was either untrue or unjust.  Conversely, the analyst did not demonstrate why his claims were invalid.  In fact, the analyst did not address his claims at all.

	e.  He cites seven previous ABCMR cases, each involving alcohol, where the Board moved a GOMOR to the respective restricted files.  Some of these cases involved Soldiers who were driving drunk and whose conduct endangered lives.  By contrast, he was asleep in his billets, essentially asserting he was a danger to no one.

	f.  The GOMOR contains erroneous and untrue elements.  The analyst failed to address this central claim in his initial application.  He requests reconsideration because Army Regulation 600-37 (Unfavorable Information) states "evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part" would "warrant [...] its alteration or removal from the OMPF.

* the GOMOR is filed in his OMPF with supporting documentation, all within the same portable document format (PDF) file; this documentation contains untrue information and has directly caused serious injustice in his life
* there are two references in this supporting documentation to his being "drunk on duty"; he was not "drunk on duty" and both the GOMOR and the AER affirm this
* the distinction is not trivial between being drunk on duty (article 112 (drunk on duty), UCMJ) and wrongful indulgence (article 134) (drunkenness - incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug, UCMJ)
* article 112 carries a penalty of a bad conduct discharge, a forfeiture of all pay and allowances, and 9 months of confinement
* article 134 (prior wrongful indulgence) has a maximum punishment of
3 months confinement and a forfeiture of two-thirds pay for 3 months
* a key point is no discharge of any kind is available as a punishment for prior wrongful indulgence
* he was not drunk on duty but because of the link between the reprimand and the supporting documentation, by implication it indicates, in part, he was drunk on duty
* because of this implication, the GOMOR is therefore untrue, in part, and warrants removal [per Army Regulation 600-37]

	g.  The GOMOR is unjust.  Both the GOMOR and the supporting documentation have created inequities disproportionate to the offense.  A partial damage assessment includes, in effect:

* the GOMOR was seen by OPM investigators during his 2007 government suitability Federal clearance
* the OPM report was seen by middle managers after he was hired as a Federal employee in 2007
* the GOMOR and supporting documents (containing the "drunk on duty" phrase) will be seen during his background investigation for his upcoming internship with the North Atlantic Treaty Organization (NATO), LANDCOM
* the documentation containing the phrase "drunk on duty" may be seen by prospective future employers within NATO, Department of Defense or the Intelligence Community, and detrimentally affect his chances for employment
* it is not fair that, despite his credentials and the level of performance achieved since, an isolated incident from 15 years ago (with no negative incidents thereafter) continue to jeopardize his opportunities
* in 2011 he was invited to be a keynote speaker for the Government Printing Office Veterans Day ceremony, and he was to receive a letter of commendation from the admiral who commanded U.S. Fleet Forces Command
* the letter of commendation never materialized, and believes this happened as a result of his mentioning his prior service in the Army, a probable check was made of his service record 

	h.  His misconduct has been inaccurately characterized.  The phrase "drunk on duty" catches everyone's eye and has a historical as well as emotional weight.  This phrase was used both in his initial case (AR20120018057) and at his in-person hearing (AR20130013218) before the ADRB.  He feels this phrase may have skewed previous reviews of his case.

	i.  The GOMOR and erroneous reference in the supporting documentation to being "drunk on duty" caused him to be improperly discharged.  

	j.  The presence of a GOMOR can spell the end of a military career in that the affected officer may not be promoted with his or her peers.  If the officer redeems him or herself, however, an application can be made to the Department of the Army Suitability Evaluation Board or the ABCMR to have the GOMOR moved to the officer's restricted file.  The applicant was never afforded this opportunity, and therefore the GOMOR is inequitable.

	k.  The GOMOR was disproportionately severe when viewing the sweep of his entire life.  There were no infractions before or after, and there was no pattern of misconduct.  He suggests, because the Special Warfare School is the "Tip of the Spear," punishments are swift and severe.
	l.  After an exhaustive search of hundreds of records, he found no instances of a GOMOR being issued for a solitary infraction.  In each case found, multiple infractions of a more serious nature were involved.

	m.  A discharge is not listed as a form of punishment for failure to appear due to prior intoxication.  The issuance of the GOMOR, which led to the discharge, was therefore inequitable.

	n.  As an additional mitigating factor, he was going through a separation during a bad marriage at the time of the incident.  His marriage ultimately ended in divorce in 2002, and he includes a copy of his divorce certificate.  He recognizes this does not excuse his conduct; it can help explain an otherwise inexplicable departure from high standards of conduct.

20.  The applicant offers new arguments in his self-authored statement.

	a.  The GOMOR is inextricably tied to his discharge which failed to follow law and regulation.  The ADRB found that he was directly discharged due to the GOMOR, the entire discharge was improper.  That impropriety makes the GOMOR, the supporting documentation, and the AER fruit of the poisoned tree.  These documents should therefore be removed in the name of propriety and equity.

	b.  A chief question he asked of the Board in his initial application was "how much punishment for that incident in 1998 is enough?"  Also, did the imposing officer intend to punish him for the rest of his life?  The imposing officer answered this in a letter of support saying "After reviewing [applicant's] subsequent record of service to the country over the past decades, it is my opinion that he possesses great potential to advance and that the GOMOR has served its purpose of reproof, correction, and instruction.  Accordingly, I now support its removal from his OMPF."

	c.  The letter of support from the imposing officer did not come easily.  The applicant and the imposing officer communicated several times, the applicant provided him documents demonstrating his personal success, and the imposing officer consulted with legal counsel before personally drafting his letter of support.

	d.  The analyst for his initial application first states the GOMOR's permanent filing is correct because it was directed by competent authority (the imposing officer), but then dismisses imposing officer's recommendation for removal.  The applicant contends if the imposing officer's judgment is to be respected for the initial filing instructions his judgment for removal should carry the same weight.
	e.  Governing regulations authorize the removal of an unjust GOMOR, or transfer to the restricted file when it can be determined the document has served its intended purpose.  The GOMOR caused him to be discharged.  It has impacted his life after his discharge.  His successes as a Federal employee, graduate student, and as a volunteer testify to the fact the behavior he exhibited at Fort Bragg was isolated and never repeated. 

21.  The applicant addresses arguments regarding the AER in his self-authored statement.

	a.  He did not make it clear in his initial application he only recently discovered the existence of the AER.  He was not presented the AER at the time, nor was he given the opportunity to acknowledge or appeal the AER.  

	b.  The AER does not address academic performance but rather focuses on what occurred, to include a comment regarding breathalyzer results.  It is just as damaging as the GOMOR, and it is unjust for the same reasons as the GOMOR.  The applicant requests that it too be removed.

22.  In the ROP for his initial application, his post-service achievements were stated as being noteworthy, but did not outweigh his misconduct.  The applicant asks the analyst, what sort of accomplishment would have been sufficient to outweigh his misconduct?  Rather than weighing accomplishments against misconduct, he suggests the Board consider whether the misconduct in question was out of character, and whether the applicant has learned from his mistake?  He believes, in effect, his record (both while in the Army and after) supports finding this incident was out of character and he clearly has learned from his mistakes.

23.  The applicant provides a letter of support from the officer (now retired) who imposed the GOMOR, which essentially states:

* he supports the applicant's request to have the GOMOR removed from his OMPF
* as the CG of the school attended by the applicant, he issued the GOMOR and directed it be filed in his OMPF
* after reviewing his subsequent record of service to his country over the past decade, it is his opinion the applicant possesses great potential to advance
* he believes the GOMOR has served its purpose of reproof, correction, and instruction, and should therefore be removed


24.  The applicant provides:

* a page from his background investigation conducted by OPM which essentially summarizes the misconduct which resulted in the applicant receiving the GOMOR and uses the term "drunk on duty" as well as "previous overindulgence"
* a letter of support from a former member of his ILARNG unit which essentially affirms the applicant's superior integrity, leadership skills, and technical knowledge; the misconduct which led to the GOMOR was out of character
* three civilian employee appraisals which show the applicant as highly rated
* a recommendation form completed by an adjunct professor which lauds the applicant's academic performance and recommends him for the Naval War College's Nonresident Graduate Degree Program
* a letter notifying the applicant he has been nominated for the McGinnis Family Award for Outstanding Performance in Nonresident Education
* a letter affirming the applicant has been selected for the internship program with NATO headquarters

25.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Appendix B-1 states a letter of reprimand is filed in the performance folder of the OMPF.

26.  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.  

	a.  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 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 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.  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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

27.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed policies and tasks for the Officer Evaluation Reporting System that included reporting systems for academic performance and potential.

	a.  Academic performance counseling and evaluations for military schools will be conducted in accordance with procedures established at the local level by the commandant of the school and the Commander, U.S. Army Training and Doctrine Command.  Academic performance counseling and evaluations for military personnel attending civilian educational, medical, or industrial institution will be conducted in accordance with procedures established at the local level by the dean of the institution or appropriate civilian official.

	b.  For Reserve Component personnel not on active duty, the service school commandant for service school resident courses is responsible for preparing the AER.

	c.  There are many types of reports that must be referred to the student by the reviewing official for acknowledgment and comment.  The following types of reports will be referred:

* any report with a "NO" response
* any report with an "Unsatisfactory" rating
* any report with a "marginally achieved course standards" response
* any report with a "failed to achieve course standards" response
* any report with comments that, in the opinion of the reviewing official, are so derogatory that the report may have an adverse impact on the student's career

	d.  An evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored.

28.  Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  No person has an inherent right to continue service as an officer.  The privilege of service is based on satisfactory performance.  

	a.  Chapter 2 prescribes the criteria and procedures governing the involuntary separation of Reserve officers when their retention is not in the best interest of the service.  The retention of officers whose performance of duty or conduct is substandard, deficient in character, or is otherwise unsuited for military service cannot be justified.  Paragraph 2-12 authorizes the involuntary separation of officers due to moral or professional dereliction to include:

* failure to meet the standards in a course of instruction at a service school due to disciplinary reasons
* conduct unbecoming an officer

	b.  When facing involuntary separation, the rights afforded officers include:

* consulting with a consulting counsel
* presenting his or her case before a board of officers
* to be represented by counsel
* submit statements in his own behalf
* the ability to waive the above rights
* the ability to withdraw the waiver of rights

	c.  A proper Department of the Army Headquarters agency, a commander with respect to a member of that command, and a duly-constituted selection board may originate recommendations for involuntary separation action.  

* recommendations will clearly state the reasons for the involuntary separation and will be supported by documents and physical evidence that can be reasonably included in the separation proceedings
* the evidence presented for consideration must be able to stand on its own merits, adhering to one standard, either substandard performance or moral or professional dereliction of duty

29.  According to the Cornell University Law School website, the concept of "fruit of the poisonous tree" is an extension of the exclusionary rule established in the case of Silverthorne Lumber Company v. United States, 251 U.S. 385 (1920).  This doctrine holds that evidence gathered with the assistance of illegally obtained information must be excluded from trial.  Thus, if an illegal interrogation leads to the discovery of physical evidence, the physical evidence must be excluded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of his earlier request for removal of a GOMOR and AER from his OMPF.  Alternatively, if these documents are not approved for removal, he requests they be transferred to his restricted file.

2.  In making his request, he offers the following arguments:

	a.  The GOMOR contains erroneous (untrue) elements in that the supporting documents, which he contends are an inextricable part of the reprimand because they are all within the same PDF file and they show untrue information.  They contain the phrase "drunk on duty" when, in fact, he had failed to report for duty due to previous overindulgence.  This distinction, while seemingly subtle, entails a marked difference in possible punishment under the UCMJ.  A bad conduct discharge can be given for being drunk on duty while only 3 months confinement and a forfeiture of pay are the maximum punishment for overindulgence.  In evaluating this contention:

* the documents can, in fact, be separated and/or portions of the documents can be redacted; they are in electronic format
* the applicant acknowledges the accuracy of the GOMOR and AER, but disputes the use of the phrase "drunk on duty" in a counseling statement and the request for relief from the Civil Affairs Officer Advanced Course
* neither the GOMOR nor AER, therefore, are erroneous or untrue, only two of the documents within the same PDF file inaccurately state his misconduct as "drunk on duty"
* arguably, simply being intoxicated when one is supposed to be ready for duty is damaging enough; while there is a distinction to be made between being "drunk" on duty versus being unable to report for duty due to "previous overindulgence," it may well be lost on many who read his file 

	b.  The GOMOR is unjust because the erroneous supporting documents showing the phrase "drunk on duty" have created repeated inequities by negatively impacting his government civilian career.  He cites civilian law as informing on this matter because a civilian judge can assess whether the continued presence of a record of an offense might create an injustice disproportionate to the original offense.  Additionally, he notes that, because he was discharged 9 months after receiving the GOMOR, he never had the opportunity to acquire good evaluation reports which could have been used as a basis to apply for the transfer of the GOMOR and AER to the restricted file.

* the GOMOR and AER record the misconduct which occurred as well as the command actions taken to address that misconduct
* the GOMOR is an administrative measure with its own due process; comparisons to civilian legal practices might instruct but would lack relevance
* by placing it in the applicant's permanent OMPF the imposing officer clearly felt the applicant's misconduct warranted the ability of future reviewers, evaluating him for possible favorable personnel actions, to know what occurred
* given the stated success achieved by the applicant as a government civilian, it would appear the presence of these documents has not prevented him from being highly rated or considered for important positions

	c.  The GOMOR was unjustly filed in that it was disproportionately severe when taken in the perspective of his entire career.  He had only this one incident then and since; there was and has been no pattern of misconduct.

* the number of incidents is less relevant than the nature of the misconduct
* as an officer, the applicant was held to a higher standard both in terms of the overindulgence and by not being truthful about the death of a relative
* each case reviewed by the Board is evaluated it on owns merits and, as such, are only broadly comparable
* the pattern or lack thereof can be appropriate when considering if the GOMOR and/or AER should remain in the performance portion of the OMPF, be removed or transferred to the restricted file

	d.  The GOMOR and the AER are inextricably linked to his discharge, which was found by the ADRB to have been improper.  Because of this link, and the fact his discharge was found to be improper, both documents must also be found to be improper.  He contends they are both the "fruit of a poisoned tree," with the "poisoned tree" being the improper discharge.

* the concept of being fruit implies it resulted from something; in this case both the GOMOR and AER preceded the discharge, not the other way around
* the sole basis for the ADRB's decision to upgrade the applicant's discharge was a finding the applicant should have been offered the chance to present his case before a board of officers; it otherwise found the reason for the discharge was proper and equitable
* the GOMOR or AER were not cited as the basis for the applicant's discharge; the discharge order cited paragraphs within Army Regulation 135-175 which cover the applicant's failure to meet the standards of a service school and for conduct unbecoming an officer 

	e.  The GOMOR and AER should be removed because supporting documentation filed with the GOMOR contains an untrue statement (he was drunk on duty).  The GOMOR is linked in his OMPF with these supporting documents making it, in part, untrue.  Army Regulation 600-37 allows for the alteration or removal of documents when it is shown by clear and convincing evidence they are unjust or untrue.

* as stated above, the applicant acknowledges the accuracy of the GOMOR and AER, but disputes the use of the phrase "drunk on duty" in a counseling statement and the request for relief from the Civil Affairs Officer Advanced Course
* also as noted earlier, these documents are in electronic format, and can therefore be separated and/or portions of the documents can be redacted
* the applicant's arguments do not constitute clear and convincing evidence the GOMOR and AER are untrue or unjust

	f.  The imposing officer recommends removal of the GOMOR from the applicant's OMPF.  His current recommendation should be deemed with the same weight given to his initial direction for filing in the OMPF.

* although the imposing officer is now retired and has no authority to direct either removal or transfer to the applicant's restricted file, it is apparent he took time to evaluate the applicant's conduct and performance since his discharge from the Army
* given this considered review, weight should be given to his recommendation

	g.  Army Regulation 600-37 permits the transfer of a GOMOR to a recipient's restricted file when there is proof the intended purpose has been served and the transfer would be in the best interests of the Army.  The applicant contends the incident which led to the GOMOR, AER, and his discharge was an isolated event and he has had no instance of misconduct since.  He also states he has suffered unanticipated harm from the presence of these documents.  He feels his accomplishments since his discharge as well as his potential to serve his Country in future significant government positions should be considered.

* his record contains no evidence of any other instance of misconduct
* his accomplishments since his discharge are significant and noteworthy
* his selection as an intern for NATO is an indication of the potential he has for future service

	h.  He was never given the opportunity to either acknowledge or appeal his AER as he was not aware of its existence until recently.  Because of this, and due to the AER being linked to the GOMOR as well as his subsequent  improper discharge, it too should be removed from his OMPF.  

* there is no evidence in his record he was given the opportunity to respond to the AER
* having attended previous service schools, it is a safe assumption he knew an AER would result from this school; there is no evidence he sought the chance to rebut the AER

3.  While he maintains the GOMOR and AER are linked and requests both be either removed or placed in the restricted file, there is insufficient evidence to support either removing the AER or transferring it to the restricted file.  

	a.  Army Regulation 600-37 allows the removal of documents when clear and convincing evidence shows they are either untrue or unjust.  The applicant, however, does not provide such evidence.  Rather he asserts supporting documents contain objectionable language, while the AER contains language more accurate for what occurred.  

	b.  Army Regulation 623-105 states requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored.

4.  A GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  Because he only served an additional 9 months after receiving the GOMOR, it can be argued the applicant did not have adequate time to demonstrate by his conduct and performance he had learned from his mistake.  




While not directly relevant to his period of service, following his misconduct in 1998 and as a civilian, the applicant has rebounded in an exceptional manner.

* exceeded performance standards during 7 years of Federal employment (2007-2014)
* awarded first prize in the Admiral Richard G. Colbert Memorial Essay Competition (2011)
* graduated with "high distinction" from the Naval War College, College of Distance Learning; Masters of Arts in National Security and Strategic Studies (2013)
* nominated by faculty as a candidate for the McGinnis Family Award for Outstanding Performance in Nonresident education (2013)
* selected for an intern position with the G-3 Operations Division of LANDCOM, NATO (2014)

5.  He states he is genuinely remorseful and accepts responsibility for the behavior that caused the GOMOR.  It has been over 16 years since he received the GOMOR.  His record supports it was an isolated incident and there is no indication of any recurrence of misconduct.  He was most recently serving in a position which supported contingency operations and was indicative of his potential to make positive contributions in the service of his Country.  The GOMOR appears to have served its intended purpose. 

6.  Therefore, as a matter of equity, the GOMOR, dated 23 April 1998 should be transferred to the restricted folder of his OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  As to the reconsidered issue of transferring the GOMOR to the applicant's restricted file, the Board has determined the evidence presented is sufficient to amend the decision of the ABCMR set forth in Docket Number AR20130004108, dated 5 November 2013 by transferring the GOMOR, dated 23 April 1998, to the restricted folder of his OMPF.
2.  As far as the other reconsidered issues pertaining to the GOMOR and AER, the Board further determined the evidence was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing from the applicant's OMPF the GOMOR, the AER, and placing the AER in the applicant's restricted folder of his OMPF.



      __________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)                                         AR20140011246



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140011246



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1