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ARMY | BCMR | CY2015 | 20150006653
Original file (20150006653.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20150006653 


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 24 February 2012, from his official military personnel file (OMPF) or in the alternative, transferred to the restricted portion of his OMPF.

2.  The applicant states:

   a.  The GOMOR has been in his permanent file since February 2012.  He petitioned the Department of the Army Suitability Evaluation Board (DASEB) in April 2013; however, his application was denied due to insufficient evidence.  He believes there is sufficient evidence to support his petition.  The promotion board for chief warrant officer three (CW3) will convene in April 2015.  He would like the GOMOR expunged from his records so his promotion chances will not be hindered.

   b.  Since the imposition of the GOMOR, he has made great strides to overcome his lapse in judgment.  He would not let this one incident deter him from continuing to do his job serving the Army to the utmost of his ability.  He has consistently performed above standard.  For example, he received a Joint Service Commendation Medal for exceptional performance as the S6 officer in charge of a high-visibility combined bilateral operation within his first year assigned to his current unit, 5th Special Forces Group (Airborne).  He has always been a top physical performer, scoring well above the Army Physical Fitness Standard, nearly attaining the maximum score the last few years.  He has worked hard to improve himself professionally by attending professional and duty enhancing coursework, including completing a Bachelor's Degree in Information Technology Management, attending the Knowledge Management Course, and Tactical Local Area Network training.

   c.  This is the only adverse action he has received in his 17-year career.  He has always received excellent evaluations for his duty performance.  This is demonstrated by the fact that he still received an exceptional Officer Evaluation Report (OER) during the rating period in which he received the GOMOR.  His rater evaluated his performance as "Outstanding Performance, Must Promote" and stated that he had "unlimited potential, send to Warrant Officer Advanced Course now and promoted to CW3 at earliest opportunity."  His senior rater rated his performance as "Best Qualified" and commented that he should be promoted at the earliest opportunity. 
   
   d.  He also received an Army Commendation Medal from this deployment despite the fact that he received a GOMOR.  His OERs since that period have continued to be excellent.  His OER from 2 April 2013 to 1 April 2014 included a comment from his senior rater stating he is "in the top 3 percent of communications warrant officers"  he has served with during his 18 year career and that he "possess truly unlimited potential; promote to CW3 ahead of peers."  He also notes that he should remain within the Special Operations community given his natural grasp of unconventional warfare.  Finally, his most recent OER had comments from his rater like "CW2 Kyle Campbell is the best warrant officer I've served with in my eight years of service" and his performance was rated at "Excels."  His senior rater measured his performance as "Most Qualified" and recommends he be promoted to CW3 ahead of his peers.  Comments like these demonstrate how valued he is within his unit and how much of an asset he can continue to be to the Army.

   e.  He has served in the Army for 17 years and considers himself lucky to be a part of what he feels is the greatest organization in the United States.  The Army has provided him and his family with a comfortable living, an education and functional experience in communications.  He has had the honor of calling himself a Soldier and has done so through several deployments in support of our nation.  He has completed a 15-month deployment to Iraq, 4-month and            12 month deployments to Afghanistan, and a 4 month Special Operations rotation to Bahrain and the United Arab Emirates in support of the war on terrorism.

   f.  Both he and the Army have benefited from his many years of service. The Army has invested heavily in his education and he has demonstrated his expertise with exemplary duty performance.  Given that his direct supervisors see him as a leader, a person with no issues involving alcohol use or any negative issues, and someone who is capable of career progression and promotion, removal of the GOMOR from his OMPF would be proper.  He will continue to mentor and teach the next generation of officers and Soldiers all of the things that he has been blessed to learn from his time in the Army.  He would like to continue his service, unhindered by a previous misjudgment.  In or to carry on with his otherwise exemplary career unimpeded, he would like the GOMOR permanently removed from his records, or in the alternative, placed in the restricted portion of his OMPF.  The applicant thanks the Board members for their time and consideration and truly hopes that their decision is one that will allow him to continue his career.

3.  The applicant provides:

* a self-authored statement
* 3 DA Forms 67-9 (OER)
* 2 DA Forms 67-10-1 (Company Grade Plate OER)
* Transcripts
* a certificate
* DA Form 4037 (Officer Record Brief)
* 3 memoranda

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a member of Client Services, Fort Campbell, KY as counsel, she did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

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 over 11 years enlisted service, the applicant was appointed as a Reserve warrant officer in the Army of the United States on 28 April 2009.  On  28 April 2011, he was appointed and promoted to chief warrant officer two in the Regular Army.

3.  On 24 February 2012, he was administered a GOMOR wrongfully consuming alcohol in violation of General Order Number 1, and for willfully disobeying the orders of his commander.  On 25 January 2012, at Bagram Airfield, Afghanistan, his company commander and first sergeant (1SG) knocked on his door in response to an excessive noise complaint.  After his roommate initially attempted to mislead the command team as to the applicant's whereabouts, the applicant was found passed out, face down on his bed, with the room smelling of alcohol.  Upon being awakened, the applicant displayed signs of intoxication, so his command decided to escort him to the Mayor Cell.  Prior to leaving the room, his 1SG overheard him tell his roommate, "All we have to do is ride this out until morning."  Based on his behavior, coupled with the odor of alcohol emanating from his room, plans were made to have him submit to alcohol testing.  He was ordered to refrain from drinking any liquids until testing could be completed.  The applicant not only disobeyed the order not to drink any liquids, but he also refused to comply with the subsequent order to provide a blood draw.  Shortly thereafter, a plastic water bottle was found in his room which smelled of alcohol.

4.  The applicant provided a rebuttal, which said, in effect:

* He fully accepted responsibility for his actions
* He has served loyally and without any adverse action for over 14 years
* He had deployed once to Iraq and twice to Afghanistan where he proved himself to be a skilled Soldier
* He apologized for his gross error in judgment and the embarrassment he brought to the brigade.

5.  Each member of the applicant's chain of command recommended the GOMOR be filed in the applicant's OMPF.  In addition to the GOMOR, each recommended a General Officer Article 15 be given for misconduct.  On 9 March 2012, the GOMOR issuing authority declined to grant the command's request for a General Officer Article 15 and directed the GOMOR to be permanently filed in his OMPF.

6.  In April 2013, the applicant petitioned the DAESB to transfer the GOMOR to the restricted portion of his OMPF.  On 15 August 2013, the DAESB denied the applicant's request.

7.  The applicant provides copies of his OERs, transcripts, and memoranda in   support of the claims listed in the request, statement, and evidence portion of this document.

8.  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.

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.  

	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 evidence of record shows the applicant was reprimanded for wrongfully consuming alcohol in violation of a general order and for willfully disobeying the orders of his commander.  He was afforded the opportunity to submit matters in his own behalf.  In his rebuttal, he took responsibility for his actions and, essentially, requested leniency.

2.  After careful consideration of the applicant's case, the imposing general officer ordered the permanent filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance section of his OMPF.

3.  For removal, the regulation requires the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part.  The fact the applicant expressed remorse, accepted responsibility, and is now promotion board eligible to CW3 does not negate the basis for the GOMOR. Additionally, the applicant acknowledged the GOMOR was substantively accurate.  

4.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  There is a reluctance to remove or transfer adverse information to the restricted section of an OMPF when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When this Board does move unfavorable information, it only does so if it has truly served its intended purpose. 

5.  In this case, the GOMOR is properly filed and the applicant has offered no evidence the document was either untrue or unjust.  On that basis, the requested relief should not be granted.

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)                                         AR20150006653





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         AR20150006653



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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