IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20150005888 


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, in effect, correction of his record by removing a General Officer Memorandum of Reprimand (GOMOR), dated 13 May 2011, from his Official Military Personnel File (OMPF). 

2.  The applicant states:

   a.  He was punished due to a false police report.  Charges were preferred against him in May 2011 which resulted in his arrest for domestic violence in an incident in which he was not the aggressor.  

   b.  He received a GOMOR from his command based on the perceptions of the allegations of a case that was still pending.  He was not the aggressor and he provides supporting documentation from the Family Advocacy Case Review Committee (CRC) Incident Determination Board which supports his contention as well as a document from the State Court of Clayton County, GA, which shows all of the charges were dismissed. 

   c.  His receipt of a GOMOR is unjust because he did not receive proper consideration of his pending case which ultimately resulted in a finding of not guilty.  He is a good Soldier and he and his family would like to continue his career and move forward from this horrible situation that places a blemish on his record.  



3.  The applicant provides:

* letter of support
* memorandum from the Family Advocacy CRC
* document from the State Court of Clayton County, GA
* Enlisted Record Brief

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.  On 17 March 2005, the applicant enlisted in the Regular Army and he was awarded military occupational specialty 91D (Power Generation Equipment Repairer).  

3.  He has served in a variety of stateside and overseas assignments to include deployments to Kuwait and Iraq.  He attained the rank/grade of sergeant/E-5 on 1 February 2010.

4.  On 13 May 2011, he received a GOMOR from Lieutenant General (LTG) WGW, the Commanding General, Third Army, Fort McPherson, GA.  The reprimand was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).  The GOMOR reprimanded him for an incident of family violence.  It states, in part, that on the morning of 12 March 2011, the applicant and his wife were involved in a physical altercation.  When a verbal argument escalated, the applicant chose to use physical force.  The applicant's wife informed the investigating officer that the applicant punched her in the face and choked her during the physical altercation. There were marks on the spouse's neck, a cut on her cheek, and a cut inside her mouth.  There was a juvenile present in the room when the applicant was striking his spouse.  The investigating officer determined that the applicant was the aggressor in the situation and he was apprehended.  The applicant was transported to Clayton County Jail where he was charged with battery, family violence, and cruelty to children in the 2nd degree.

5.  On 13 May 2011, he acknowledged receipt of the GOMOR.  He was provided a copy of the documents which formed the basis of the reprimand and he was given 7 calendar days to respond.  

6.  On 31 May 2011, he provided a self-authored statement requesting the GOMOR be filed locally, allowing him to continue to serve with honor with no permanent blemish on his record.  In this memorandum he accepted full responsibility for his actions.  He acknowledged he was very fortunate that his wife had forgiven him for his stupidity and agreed not to press charges or testify against him.  He further stated that he had learned tremendously from the event and embraced it as an opportunity to better himself.

7.  On 29 June 2011, after reviewing the case file, the applicant's rebuttal, and the filing recommendations of his chain of command, LTG VKB directed the GOMOR be filed in the applicant's OMPF.  The GOMOR is properly filed in the performance section of his OMPF.

8.  The applicant provides:

   a.  A memorandum from the Chairperson, Family Advocacy CRC, dated         19 May 2011, in which the CRC determined the incident did not meet the criteria for physical abuse and would enter the determination into the Department of Defense Central Registry database.
   
   b.  A letter of support, composed by his first sergeant (1SG), dated 26 May 2011.  In the letter, the applicant's 1SG states the applicant has taken full responsibility for what happened and the repercussions of his actions.  He has wholeheartedly embraced all court-mandated requirements, and has gone above and beyond by taking additional corrective measures to ensure he does not have any anger management, stress, or alcohol problems.  His 1SG also noted the applicant was seeking out additional marriage counseling.  He urged the filing authority to consider the whole Soldier and to forgive the applicant for his mistakes and allow him to move forward with his career.

   c.  A document from the State Court of Clayton County, GA, dated 27 June 2011, which shows the State’s motion for nolle prosequi (an entry made on the record whereby it was declared/granted that no further procedures/action would be taken) for the following five charges:  battery-family violence (2), battery (2), and cruelty to children (1).

9.  Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

10.  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, chapter 7, Army Regulation 600-37.  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.

11.  Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR, which includes 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 (Department of the Army Suitability Evaluation Board or this Board). 

12.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides, in pertinent part, that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment (NJP) under the UCMJ.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows on 12 March 2011, the applicant and his spouse were involved in a physical altercation.  The applicant's spouse informed the investigating officer that during the altercation the applicant punched her in the face and choked her with a child present.  There were marks observed on the spouse's neck, and she had a cut on her cheek and inside her mouth.  This misconduct resulted in the applicant receiving a GOMOR which was directed for filing in his OMPF.  

2.  The applicant contends his receipt of the GOMOR is unjust because he did not receive proper consideration of his pending case which ultimately resulted in a finding of not guilty.  He highlights the fact that the CRC determined the incident did not meet the criteria for physical abuse and that the State Court of Clayton County, GA, subsequently decided against prosecuting him for the following five counts:  battery-family violence (2), battery (2), and cruelty to children (1).

3.  There is insufficient evidence which indicates the GOMOR he received contained any unsubstantiated information that would serve as a basis for removing it from his OMPF.  The fact that the CRC determined the incident did not meet the criteria for physical abuse and that the State Court of Clayton County, GA, subsequently decided against prosecuting him is noted; however, the disposition of the charges is insufficient to serve as a basis for removing the GOMOR from his OMPF.  In addition, the applicant accepted responsibility for his actions and readily admitted that he was very fortunate that his wife had forgiven him for his stupidity and agreed not to press charges or testify against him.  

4.  The applicant appears to contend that he was denied due process by receiving an administrative GOMOR.  Pursuant to Army Regulation 27-10, commanders should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  

5.  Despite the applicant’s protestations, the GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.

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)                                         AR20150005888



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ABCMR Record of Proceedings (cont)                                         AR20150005888



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