IN THE CASE OF:	  

		BOARD DATE:	  10 February 2014

		DOCKET NUMBER:  AR20140020213 


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 reconsideration of his request for transfer of a general officer memorandum of reprimand (GOMOR) from the performance folder to the restricted folder of his Official Military Personnel File (OMPF), formerly known as the Army Military Human Resource Record.

2.  The applicant states that the imposing authority, Brigadier General (BG) C____ L. M____, U.S. Army (Retired), authored a memorandum appealing to the Department of the Army Suitability Evaluation Board (DASEB) to transfer the GOMOR.  She stated that she believes the intended purpose of the reprimand has been served and that it is in the best interest of the U.S. Army to transfer the GOMOR in order to allow the applicant to continue with his career path.

   a.  He states that his current brigade commander, current and prior battalion commanders and operations officers of the unit, and officers in his current chain of command have authored letters in support of transferring the GOMOR.

   b.  He adds that he was eligible for consideration by the Fiscal Year 2014 (FY14) Chief Warrant Officer Three (CW3) Promotion Selection Board (PSB); however, he was a non-select for CW3 due to the GOMOR that is currently filed in his OMPF.  He adds that this was a tremendous disappointment to him and his family, and his past and current leadership have also expressed their frustration in his failure to be selected.

3.  The applicant provides nine letters in support of his request.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130019826 on 2 January 2014.

2.  The applicant had prior honorable active duty enlisted service from 7 January 2002 through 4 March 2008.  He held military occupational specialty (MOS) 31D (Criminal Investigation (CI) Special Agent) and he attained the rank of staff sergeant/pay grade E-6.
 
3.  He was appointed as a Reserve warrant officer on 5 March 2008 and awarded MOS 311A (CI Special Agent).  He was promoted to Chief Warrant Officer Two (CW2)/pay grade W-2 in the Regular Army on 5 March 2010.

4.  On 20 May 2010, BG C____ L. M____, Commander, U.S. Army Criminal Investigation Command (USACIDC), Fort Belvoir, VA, issued a GOMOR to the applicant for dereliction of duty and conduct unbecoming an officer and a gentleman.  The GOMOR shows that, on 5 March 2010, as Drug Suppression Team (DST) Leader, the applicant authorized two DST members to respond to a crime scene with knowledge that both had previously been drinking alcohol.  He sent his subordinate Soldiers out on a mission rather than calling the on-call duty agent.  His decision resulted in the two Soldiers being arrested (i.e., one for being drunk on duty and driving while intoxicated and the other for being drunk on duty).

   a.  On 26 May 2010, the applicant provided his response to the GOMOR.
He stated there were no excuses for his actions and he sincerely apologized.  The applicant stated that he regrets that he made a hasty decision and he demonstrated poor judgment in dispatching his subordinate Soldiers to a potential crime scene.  He offered assurance that it does not accurately demonstrate his leadership ability.  He accepted responsibility for his actions and any resulting punishment.

   b.  Three recommendations pertaining to the filing of the reprimand show that CW3 J____ K. F____, Special Agent (SA) in Charge (the applicant's immediate supervisor); Chief Warrant Officer Four (CW4) M____ A. O____ (the battalion operations officer); and Lieutenant Colonel (LTC) K____ J. T____ (the battalion commander) all recommended that the imposing authority direct the GOMOR be filed locally, not in the applicant's OMPF.


   c.  On 10 June 2010, Colonel (COL) T____ H. T____, Commander,
6th Military Police (MP) Group (Criminal Investigation Division (CID)), USACIDC, recommended the GOMOR be filed permanently in the applicant's OMPF.  He noted that his recommendation was not consistent with that of the applicant's entire chain of command.  He added, "I know [the applicant] has learned a hard lesson and that he will never fail to lead again, but as their [his Soldiers'] leader he must also experience the consequences of this unfortunate event and mission failure."
   
   d.  On 19 July 2010, after considering the applicant's rebuttal and the recommendations of his chain of command, the Commander, USACIDC, directed filing the letter of reprimand in the applicant's OMPF.

   e.  The filing directive; GOMOR, dated 20 May 2010; referral document; applicant's response; chain of command recommendations; Commander's Inquiry, dated 26 March 2010; Agent's Investigative Report, dated 11 March 2010; and Investigating Officer's (IO) appointment, dated 9 March 2010, are filed in the performance folder of the applicant's OMPF.

    	(1)  A review of the Agent's Investigative Report shows that at about 
1000 hours, 10 March 2010, SA C____ interviewed the applicant.  The applicant provided a sworn statement and the counseling documents of the two DST Soldiers.  He stated that he received telephonic notification of a possible DST duty call from Specialist (SPC) B____.  

    	(2)  The report also shows, "SA [applicant] was briefed by SPC B___ and [applicant] asked SPC B____ if he was 'good,' which SPC B____ replied he was.  SA [applicant] told SPC B____ to go [to] the scene and he would meet him there."

5.  On 15 November 2012, the applicant submitted a request to the DASEB for transfer of the GOMOR to the restricted folder of his OMPF.

   a.  The applicant indicated that he felt it was important to provide context to the events of 5 March 2010 and insight into his decision to direct SPC B____ to respond to the call he received that day.  At the time, he felt SPC B____ was the right person to respond to the call because he believed he was sober and he had no indication that another DST Soldier would be accompanying SPC B____.

   b.  He listed the awards and decorations he received since the event and provided two letters of support.  He also indicated that he had openly shared his lessons learned from the incident with over 35 enlisted agents and 10 junior warrant officers.
   c.  The DASEB concluded that it was premature to transfer the GOMOR without more evidence of a compelling nature to show the GOMOR's intent had been served.  Accordingly, the DASEB denied the applicant's appeal.

	d.  The DASEB decision memorandum, dated 5 March 2013, is filed in the performance folder of his OMPF.  The DASEB Record of Proceedings, dated 
21 February 2013, is filed in the restricted folder of his OMPF.

6.  On 11 June 2013, the applicant submitted a request for reconsideration to the DASEB for transfer of the GOMOR to the restricted folder of his OMPF.

   a.  The applicant indicated that the general officer (GO) who imposed the GOMOR corresponded with him and conducted an extensive review of his performance.  She then authored a memorandum in support of his petition to transfer the GOMOR.

   b.  He also noted that the GOMOR contained an error in that it indicated that he had authorized two DST Soldiers to respond to a crime scene with knowledge that both had previously been drinking.  He acknowledged that he authorized one of his Soldiers to respond to the incident and added that the IO's report clearly shows that he authorized only one of the Soldiers to respond.

   c.  The DASEB analyst recommended granting the applicant's petition.  However, the DASEB determined the overall merits of the applicant's case were not sufficient as a basis to amend the previous DASEB decision.  Accordingly, the DASEB denied the applicant's appeal.

	d.  The DASEB decision memorandum, dated 16 October 2013, is filed in the performance folder of his OMPF.  The DASEB Record of Proceedings, dated 
5 September 2013, is filed in the restricted folder of his OMPF.

7.  On 25 October 2013, the applicant submitted a request to the ABCMR for transfer of the GOMOR to the restricted folder of his OMPF.

   a.  The applicant provided substantially the same reasons that he presented to the DASEB in his request for reconsideration.

   b.  The Board stated, in pertinent part, "[t]he applicant's action authorizing any DST member to a crime scene with indication or knowledge that the individual's judgment could be impaired was sufficient reason for receipt of the GOMOR" and "[t]he question of the GOMOR stating he sent two Soldiers vice just one Soldier is really moot at this point."  The Board also noted the applicant did not provide a copy of the memorandum from the GO who imposed the GOMOR showing she requested the DASEB transfer the GOMOR that she had issued to the applicant.

   c.  The ABCMR determined that the overall merits of the applicant's case were not sufficient as a basis to correct his records.  Accordingly, the ABCMR denied the applicant's request.

	d.  The ABCMR decision memorandum, dated 7 January 2014, is filed in the performance folder of his OMPF.  The ABCMR Record of Proceedings, dated 
2 January 2014, is filed in the restricted folder of his OMPF.

8.  A review of the applicant's OMPF revealed there is no other evidence of adverse or derogatory information in his OMPF.

9.  This review also revealed that subsequent to the matter under review, the applicant received:

   a.  the following awards:

* Army Commendation Medal (2nd and 3rd Oak Leaf Clusters)
* Army Achievement Medal (2nd Oak Leaf Cluster)
* Afghanistan Campaign Medal with 1 Bronze Service Star
* Overseas Service Ribbon (2nd Award)
* North Atlantic Treaty Organization Medal
* Combat Action Ribbon

   b.  six DA Forms 67-9 (Officer Evaluation Reports (OERs)) spanning the period 4 March 2010 through 27 February 2014, that show:
   
* four different raters evaluated the applicant's performance during the rating periods and his potential for promotion as "Outstanding Performance, Must Promote"  
* four different intermediate raters assessed him as professional, talented, and a solid technical expert
* five different senior raters evaluated his promotion potential as "Best Qualified"

10.  MILPER Message Number 14-012, issued 17 January 2014, subject:  FY14 CW3, CW4, and Chief Warrant Officer Five (CW5) PSBs, shows the zone of consideration for promotion to CW3 for all technical services warrant officers (including MOS 311A) was CW2 with an Active Date of Rank (ADOR) of 
1 February 2010 through 30 September 2010.  The message also shows, "A selective continuation (SELCON) Board, based on the needs of the Army, will convene at the conclusion of the FY14 CW3, CW4, and CW5 PSBs to consider CW2, CW3, and CW4 having twice failed of selection for promotion to the next higher grade.  Those found fully qualified may be offered continuation in their current grade for a period of one (1) year.  All CW2, CW3, and CW4 having twice failed of selection for promotion to the next higher grade and not selected for SELCON must be separated or retired in accordance with Title 10, United States Code, section 580."

11.  A review of the U.S. Army Human Resources Command website shows the applicant was considered for promotion in the promotion zone of the FY14 CW3 PSB and not selected.  It also shows that the FY15 CW3 PSB will convene from 21 April to 1 May 2015.  (Above the Zone:  CW2 with an ADOR of 30 September 2010 and earlier.)

12.  The applicant provides nine letters in support of his request to transfer the GOMOR from the performance to the restricted folder of his OMPF, as follows:

   a.  from BG C____ L. M____, U.S. Army (Retired), dated 11 June 2013, the GO who issued the GOMOR, that shows she has reviewed the applicant's performance history and communicated with him and determined that the incident was a momentary lapse in his judgment and that he has grown as a leader because of the incident.  She states the intended purpose of the reprimand was to educate and imprint upon the applicant the enormity of leadership and how the impact or repercussions of thoughtless decisions/ directions impacts others, particularly subordinates.  She concludes that the applicant has learned this valuable lesson, the intended purpose of the reprimand has been served, and she recommends the GOMOR be removed from his OMPF and placed in his local file.

   b.  from COL I____ M. D____, Jr., Commander, 8th MP Group (CID), Joint Base Lewis-McChord, WA, dated 17 November 2014, that shows he unequivocally recommends transfer of the GOMOR to the restricted folder of the applicant's OMPF.  He states the applicant has served with distinction since the incident and has continually been assigned to critical leadership positions within the USACIDC.  (He provides details of the applicant's performance in three of those positions.)  He concludes that the applicant "has undoubtedly overcome this personal adversity and has recovered well---that is what we preach as leaders" and adds that "[t]ransferring the GOMOR from the performance file to his restricted file is definitely in the best interest of the applicant, the MP Corps Regiment, and the U.S. Army."


   c.  from COL K____ J. T____, Army War College Student, Carlisle, PA (his former battalion commander at the time of the incident), dated 31 October 2014, that shows his recommendation remains the same as it was in 2010, that the GOMOR should have been filed locally.  He states the applicant's experience, education, and determination is a great asset to the MP Regiment, his organization, and the U.S. Army, and it is in the best interest of the U.S. Army to transfer the reprimand to the restricted folder of the applicant's OMPF allowing him to continue on his current career path.

   d.  from LTC C____ M. W____, Commander, 22nd MP Battalion (CID), Joint Base Lewis-McChord, WA, dated 18 November 2014, that shows the applicant is currently serving in the battalion and he has expertly organized, trained, and led the largest DST within USACIDC.  She states the administrative tool utilized in response to the incident has served its purpose, the applicant has accepted full responsibility, and he has learned his lesson.  She concludes it is in the best interest of USACIDC and the U.S. Army to transfer the GOMOR to the restricted folder of the applicant's OMPF.

   e.  from Major T____ J. L____, 7th Infantry Division, Deputy Provost Marshal, Joint Base Lewis-McChord, WA, dated 28 October 2014, that shows he recommends removal of the GOMOR from the applicant's OMPF and transfer to his local file.  He states he has known the applicant for more than a year and he has proven to be one of the finest warrant offers he has served with in 17 years of service.  He offers insight into the applicant's outstanding performance during his current duty assignment in assisting the 7th Infantry Division.  He states the applicant has taken responsibility for his actions, learned from the incident, and he continues to grow as a leader and agent.

   f.  from CW5 M____ W. A____, Battalion Operations Officer, 22nd MP Battalion (CID), Joint Base Lewis-McChord, WA, dated 22 July 2014, that shows the applicant worked directly for him from December 2011 to September 2012.  He attests to his exceptional leadership and extremely sound judgment.  He believes the isolated incident was a momentary lapse in the applicant's judgment.  He provides strong endorsement of the applicant and recommends removal of the GOMOR from the applicant's OMPF based on the fact that it has served the purpose for which it was intended.

   g.  from CW5 M____ A. O____, his intermediate rater and the battalion operations officer at the time of the incident, and current Battalion Operations Officer, 502nd MP Battalion (CID) (Forward), Bagram Air Field, Afghanistan, dated 12 July 2014, that shows he requests favorable consideration of the applicant's request to transfer the GOMOR to the restricted folder of his OMPF.  He states the applicant was a young leader at the time and he made a bad decision.  The applicant understands his decision was erroneous and he has gone on to become a great leader.  He concludes that the experience made the applicant a better Soldier and that the GOMOR has served its purpose.

   h.  from CW5 E____ A. C____, Group Operations Officer, 3rd MP Group (CID), USACIDC, Hunter Army Airfield, GA, dated 14 July 2014, that shows he requests favorable consideration of the applicant's request for transfer or removal of the GOMOR from his OMPF.  He states the applicant made a poor decision as a junior warrant officer with two years in grade and he has learned a very valuable lesson.  He provides strong endorsement of the applicant and believes the intended purpose of the GOMOR has been served.
   
   i.  from CW4 A____ D. W____, Commander, 44th MP Detachment (CID), 22nd MP Battalion (CID), Joint Base Lewis-McChord, WA, dated 24 October 2014, that shows applicant is currently serving in the detachment and he has made an immediate and successful impact on the organization since his arrival.  He attests to the applicant's professionalism, personal character, and continual effort to seek self-improvement and assignment to positions of leadership with increasing responsibilities.  He concludes it is in the best interest of USACIDC and the U.S. Army to transfer the GOMOR to the restricted folder of the applicant's OMPF.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three folders:  performance, service, or restricted.

	a.  The Authorized Documents table provides guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature.  It shows the letter/memorandum, referral correspondence, member's reply, and allied documents (if they are specifically directed for filing by the letter or referral correspondence) will be filed in the performance folder of the OMPF unless otherwise directed.  All other allied documents not listed will be filed in the restricted folder of the OMPF.

	b.  The restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this folder is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army selection board proponent.  Documents in the restricted folder of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

14.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.

	b.  Paragraph 7-2b (Appeals for Transfers of OMPF Entries) contains guidance on transfers of OMPF entries.  It states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.

		(1)  Appeals will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.  Appeals approved under this provision will result in transfer of the document from the performance folder to the restricted folder of the OMPF.

		(2)  GOMOR's may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR filed in the performance folder of his OMPF should be transferred to the restricted folder of his OMPF because it has served its intended purpose.

2.  The evidence of record shows the GOMOR, referral document, applicant's response, and filing directive are properly filed in the performance folder of the applicant's OMPF.  However, the chain of command recommendations, Commander's Inquiry, Agent's Investigative Report, and IO's appointment are also filed in the performance folder of the applicant's OMPF.

3.  The applicant's request for transfer of the GOMOR filed in the performance folder of his OMPF has been carefully considered and is found to have merit.  By regulation, if at least 1 year has elapsed since imposition, an appeal related to a GOMOR can be approved based on proof the GOMOR has served its intended purpose and that the transfer would be in the best interest of the Army.

	a.  The evidence of record shows the incident for which the GOMOR was issued was based on an isolated lapse in judgment on the part of the applicant almost 5 years ago.  The applicant's professionalism, character, leadership attributes, skills, and actions since the time of the incident, as documented by his awards and OERs, show the applicant has learned and grown, both personally and professionally.

   b.  On 11 June 2013, the GO who issued the reprimand reviewed the applicant's performance history and his appeal.  She concluded that the GOMOR has served its intended purpose and recommended transfer of the GOMOR from the performance folder of the applicant's OMPF as being in the best interest of the Army.

   c.  The evidence of record shows that senior leaders in the applicant's former and current chains of command offer their endorsement of the applicant's personal character and professionalism, attest to his worth and potential as an Army warrant officer and special agent, and advocate his continued service in the U.S. Army in positions of increasing responsibility.  In addition, they strongly recommend transfer of the GOMOR from the performance folder to the restricted folder of the applicant's OMPF.

   d.  Therefore, there is substantial evidence to conclude that it would serve the best interest of the U.S. Army to grant the requested relief by transferring the GOMOR and all related documents to the restricted folder of his OMPF.

4.  In view of the facts of this case, it would be appropriate at this time to transfer the GOMOR, dated 20 May 2010, and all allied documents to the restricted folder of his OMPF.  As a result of this correction, it would also be appropriate to transfer the two Army Review Boards Agency memoranda, dated 5 March 2013 and 16 October 2013, and the ABCMR memorandum, dated 7 January 2014, from the performance folder to the restricted folder of his OMPF.


BOARD VOTE:

___x____  ____x___  ___x____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the Army Board for Correction of Military Records' decision in Docket Number AR20130019826, dated 2 January 2014.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the General Officer Memorandum of Reprimand, dated 20 May 2010, and all allied documents to the restricted folder of his Official Military Personnel File.  As a result of this correction, it would also be appropriate to transfer the two Army Review Boards Agency memoranda, dated 5 March 2013 and 16 October 2013, and the Army Board for Correction of Military Records memorandum, dated 7 January 2014, from the performance folder to the restricted folder of his Official Military Personnel File.

2.  This Record of Proceedings and associated documents will also be filed in the restricted folder of the individual's Official Military Personnel File.

3.  This action by the Army Board for Correction of Military Records will not be grounds for promotion reconsideration under any prior Fiscal Year Chief Warrant Officer Three Promotion Selection Boards.




      _______ _   _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)                                         AR20140020213



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ABCMR Record of Proceedings (cont)                                         AR20140020213



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