IN THE CASE OF:	   

		BOARD DATE:	 16 April 2015 

		DOCKET NUMBER:  AR20140013121 


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 the general officer memorandum of reprimand (GOMOR) he received on 10 August 2011 be moved to the restricted portion of his official military personnel file (OMPF).

2.  The applicant states:

* he believes the GOMOR's intent has been met
* this application is his third attempt to move this GOMOR
* he is concerned the GOMOR is hampering his ability to join either the U.S. Army Reserve (USAR) or the National Guard

3.  The applicant provides:

* self-authored statement
* two memoranda of support
* three DA Forms 67-9 (Officer Evaluation Report (OER))

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior enlisted service in the Army National Guard (ARNG), and after completion of ARNG officer candidate school, he was appointed on 19 August 2000 as a Reserve second lieutenant in the ARNG.  He was branched military intelligence.  He entered active duty in the Regular Army on 15 April 2002.  His highest rank/grade held was major/O-4.

3.  In or around April 2010, the applicant deployed to Afghanistan.  During his deployment he was cited for conduct unbecoming an officer by engaging in an inappropriate relationship and fraternizing with an enlisted Soldier by treating that Soldier as a military equal.

4.  On 10 August 2011, the applicant was given a GOMOR which essentially reprimanded him for this behavior.

5.  On 22 August 2011, the applicant provided a written response to the GOMOR, stating, in effect:

* he acknowledged his communications with his subordinate, Staff Sergeant (SSG) Nxxxxx, cast a perception of military equality
* allowing that perception to exist was a mistake and was unintentional
* rather than creating this perception, his intent was to show concern for the issues being experienced by SSG Nxxxxx
* he regrets his empathy developed into fraternization, in terms of military equality
* aside from recognizing his mistakes, he also pointed out his accomplishments both as an enlisted Soldier and an officer
* he requested the GOMOR be either destroyed or placed in his local OMPF

6.  On 29 August 2011, the imposing officer directed the GOMOR be placed in the performance section of the applicant's OMPF.

7.  On 9 July 2012, the Commanding General, U.S. Army Human Resources Command (HRC), notified the applicant by memorandum he had been identified to show cause for retention on active duty because of misconduct, moral, or professional dereliction.  He was told the basis for this action was the GOMOR he had received on 11 August 2011.  He was informed of his rights and options.  He was also told he must acknowledge the memorandum and had 30 days to make an election.  He acknowledged the memorandum and elected to resign in lieu of elimination proceedings.

8.  On 2 May 2013, he submitted his request for resignation.  On 3 September 2013, the Acting Deputy Assistant Secretary (Army Review Boards) took action on the applicant's request, accepting his resignation and directing discharge with an honorable characterization of service.  On 24 September 2013, the applicant was discharged accordingly.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 11 years, 5 months, and 10 days of net active creditable service.  His character of service is honorable.  The separation authority is shown as Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b (misconduct, moral, or professional dereliction, or in the interests of national security) and paragraph 4-24a(1) (submit a resignation in lieu of elimination).  The narrative reason for separation is listed as unacceptable conduct.  He was awarded or authorized:

* Joint Service Commendation Medal
* Joint Service Achievement Medal
* Army Commendation Medal (4th Award)
* National Defense Service Medal
* Afghanistan Campaign Medal with one bronze service star
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon (3rd Award)
* North Atlantic Treaty Organization Medal
* Joint Meritorious Unit Award
* Meritorious Unit Commendation Award

10.  The applicant provides a self-authored statement in which he essentially states:

	a.  The intended purpose of the GOMOR has been served.

* he admits he made an egregious error by placing himself and [female] SSG Axxxx Nxxxxx on the same level in an email context
* this lapse in judgment and the perceptions created could have placed his ability to lead in jeopardy
* he lost credibility with his chain of command and the Soldiers he led
* his actions were completely out of character, and up to that point his service had been exemplary
* receiving the GOMOR caused him to refocus himself as a Soldier
* during his last two years in the Army, he strove every day to be a better Soldier, leader, and mentor
* he developed a quarterly briefing for company grade officers in his battalion which addressed service and living in accordance with Army values
* in his briefing he also covered fraternization, authority under the Uniform Code of Military Justice, and other related topics
* in March 2013 he learned he was to face a review board which would determine whether he would continue serving in the Army; he chose to resign

	b.  The language of the GOMOR reprimanded him for failing to adhere to the high ethical and professional standard required of officers in the U.S. Army.

* he has proven he is both capable and willing to adhere to those standards
* he offers his last three OERs as evidence of this; one senior rater noted the applicant demonstrated a keen intellect and the maturity of a much senior officer, thus showing he understood the GOMOR and had adjusted his interactions with enlisted Soldiers accordingly

	c.  Transferring the GOMOR to his restricted file is in the best interests of the Army.

* he requests the option to serve in the USAR or ARNG which, he contends, will help the Army retain some of the money, time, and energy spent in training him
* joining the Army was not a decision he took lightly; he decided to do a limited call to active duty while at his Officer Basic Course and he never regretted his decision
* his passion for service and the desire to continue his career in the Army has never waned
* before receiving the GOMOR, he was a commendable officer; more importantly, since the GOMOR he has been a model officer
* while serving as an executive officer in a battalion, his commander trusted him to be his representative at four quarterly training briefs and at a Division Commander's conference
* he volunteers at his son's Boy Scout Troop with the intent to be a positive role model to future leaders
* in one of his OERs, which he has included for the Board's consideration, his former brigade commander notes the applicant was capable and ready to serve as a battalion commander
* two of his OERs show him rated above center of mass (ACOM), which demonstrated his service was commendable and that he had overcome the issues which gave rise to the GOMOR

11.  The applicant provides two letters of support, both from the applicant's former battalion commanders, which state, in effect:

	a.  An affirmation the applicant's performance as their executive officer was above standard in every respect.  He functioned above his peers, and his service was outstanding.  While he clearly made a mistake, the applicant has more than made up for his error.

	b.  His keen insight, mentorship of junior officers, and the level of his experience made him an invaluable asset to the Army.  His senior raters have made important comments, such as the applicant was in the top 15 percent of all majors rated over 27 years, and was already operating at the lieutenant colonel level.  Additionally, the applicant has been helping future leaders through his volunteer work with his son's Boy Scout Troop.

	c.  Moving the GOMOR to the applicant's restricted file in his OMPF will enable him to continue an exemplary career and the Army will retain someone whose knowledge base has been shown to be critical.

12.  The applicant provides three OERs which essentially show:

* in Part V (Performance and Potential (Rater)) a rating of outstanding performance, must promote
* Part V comments include remarks about the applicant's outstanding performance, his readiness to assume battalion command, and his mentorship of junior officers through a comprehensive training program
* Part VII (Senior Rater), item a (Evaluation the Rated Officer's Promotion Potential to the Next Higher Grade) shows a rating of best qualified
* Part VII, item b (Potential compared with Officers senior rated in same grade) shows two ACOM and one center of mass (COM) rating
* Part VII comments include remarks about the applicant being an exceptional and extraordinarily gifted officer with unlimited potential; the applicant demonstrated technical and tactical skill, sound staff management, and showed himself to be a natural leader with the instincts and value sought in the Army's best officers 

13.  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.

14.  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.

	d.  Also in paragraph 7-2 is guidance regarding the transfer of memoranda of reprimand to the restricted portion of the OMPF.  It states such an appeal is based on proving the intended purpose has been served, and their transfer would be in the best interests of the Army.  The burden of proof rests with the recipient of the memorandum and substantial evidence must be provided to show these conditions have been met.



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the GOMOR he received on 11 August 2011 be transferred to the restricted portion of his OMPF.  He contends the GOMOR has served its intended purpose and its transfer would be in the best interest of the Army.  The supporting evidence provided by the applicant, in the form of letters of support from former commanders and OERs, essentially shows:

* the applicant's duty performance was exceptional and above that of his peers
* during his last two years of service, he conducted quarterly briefings for junior officers which addressed, among other topics, fraternization, the issue for which he was reprimanded
* he has volunteered at his son's Boy Scout Troop, seeking to be a positive role model for future leaders

2.  The evidence offered regarding his level of competence as a military intelligence officer is impressive.  The reason for his reprimand was not, however, his duty performance.  Rather it resulted from his behavior with an enlisted subordinate while both were deployed.  This behavior was described in the GOMOR as willful disobedience and a failure to promote a climate responsive to his subordinate's physical, moral, and personal well-being.  The breach of the sacred trust between the leader and those he leads was felt to be so egregious, it apparently compelled the imposing officer to have the GOMOR placed in the applicant's OMPF rather than his local file.  The applicant's two-year effort to provide what equates to eight quarterly briefings, OERs showing he met or exceeded performance expectations and volunteering at his son's Boy Scout Troop, while noteworthy, do not sufficiently offset what was described in the GOMOR as a pattern of poor choices and unacceptable behavior.  Based on his misconduct, he opted to resign his commission and was discharged.  

3.  Based upon the foregoing, there is insufficient evidence upon which to grant 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)                                         AR20140013121



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ABCMR Record of Proceedings (cont)                                         AR20140013121



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