IN THE CASE OF: BOARD DATE: 10 July 2012 DOCKET NUMBER: AR20120003473 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 following documents from his official military personnel file (OMPF): * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 6 November 1985 * DA Form 2627, dated 9 October 1986 * General Officer Memorandum of Reprimand (GOMOR), dated 1 August 2002 2. The applicant states he is now retired from the military with over 20 years of honorable service. He received the Article 15s at an early stage of his military career. He did not know any better and he did not have the proper leadership to guide him in the right direction. With time and experience, he became a better Soldier and received numerous awards and decorations, including the Bronze Star Medal and the Meritorious Service Medal. He is currently serving as a Department of the Army civilian and he continues to be recognized for his hard work and dedication. He received the "Hood Hero" award for best customer service at Fort Hood, TX in recognition of his customer service. He wants to remove the past errors from his record so he can move on with his civilian Army career. 3. The applicant did not provide any 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. The applicant's records show he initially enlisted in the Regular Army on 1 August 1984 and held military occupational specialty 92Y (Unit Supply Specialist). 3. On 6 November 1985, while in the rank/grade of private first class (PFC)/E-3 at Fort Ord, CA, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for willfully disobeying a lawful order by operating a vehicle without insurance. The imposing commander directed this Article 15 be filed in the performance section of his OMPF. 4. On 9 October 1986, while holding the rank/grade of specialist four (SP4)/E-4 at Fort Hunter Liggett, CA, he accepted NJP under the provisions of Article 15 of the UCMJ for assaulting another Soldier by shooting him in the stomach with a firearm loaded with blanks. The imposing commander directed this Article 15 be filed in the restricted section of his OMPF. 5. His records further show that he served through multiple reenlistments in various positions, within and outside continental United States, and attained the rank/grade of sergeant first class (SFC)/E-7. He also served in Southwest Asia from December 1990 to May 1991 and Kuwait/Iraq from April 2003 through March 2004, received multiple awards and decorations including the Bronze Star Medal, and outstanding evaluations. 6. On 1 August 2002, while holding the rank/grade of SFC/E-7 and working as an Inspector General in Korea, the applicant was reprimanded by the Commanding General (CG), 19th Theater Support Command. The GOMOR states he had an improper relationship with Staff Sergeant (SSG) JAM, substantiated by an informal investigation. His public display of affection with her caused other Soldiers and coworkers to believe the two were dating or engaged. Both were married and their spouses were not in Korea. SSG JAM admitted she was having the applicant’s baby which was conceived through in vitro fertilization. 7. The applicant acknowledged receipt and he submitted a rebuttal wherein he stated that there was insufficient evidence to support the informal investigation finding of an improper relationship. 8. On 16 September 2002, after careful consideration of the applicant's case and the rebuttal submitted by the applicant, the CG ordered the GOMOR filed permanently in the applicant's OMPF. The GOMOR is filed in the performance section of the applicant's OMPF. 9. He was retired on 30 April 2005 and placed on the retired list in his retired rank/grade of SFC/E-7 on 1 May 2005. He completed 20 years and 9 months of creditable active service. 10. His November 1985 Article 15 is currently filed in the performance section of his OMPF and his October 1986 Article 15 and GOMOR are currently filed in the restricted section of his OMPF. 11. Army Regulation 600-37 (Unfavorable Information) provides in pertinent part 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 filing determination is made. a. 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 Army Regulation 600-37, chapter 7. b. Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct. Appeals to the Department of the Army Suitability Evaluation Board to relocate a reprimand, admonition, or censure (normally for Soldiers in pay grade E-6 and above) are based on proof that the intended purpose has been served and that transfer to the restricted section would be in the best interest of the Army. c. It also provides provisions that allow the transfer of a DA Form 2627 from the performance portion to the restricted portion of the OMPF. However, there are no provisions for removing a DA Form 2627 from the OMPF (in Army Regulation 600-37). 12. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF. Chapter 2 of this Army regulation provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Table 2-1 (Composition of the OMPF) states documents, including GOMORs, will be placed in the performance or restricted sections as directed by the imposing general officer and as they are received by the custodian. Documents filed on this OMPF are those that must be permanently kept to record a Soldier’s military service, manage a Soldier’s career, and/or protect the interests of both the Soldier and the Army. DISCUSSION AND CONCLUSIONS: 1. The purpose of maintaining the OMPF is to protect the interests of both the Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and may not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. 2. With respect to the Article 15s: a. The applicant was an E-3 when he received his first Article 15 for disobeying a lawful order. The imposing commander ordered it filed in the performance section of his OMPF. The DA Form 2627 is appropriately filed in his OMPF and he has provided no reason to remove it. b. A year later, while holding the rank of SP4/E-4, he again accepted NJP but this time it was for assault with a weapon. The imposing commander ordered it filed in the restricted section of his OMPF. The DA Form 2627 is appropriately filed in his OMPF and he has provided no reason to remove it. c. The applicant had the opportunity to turn down this Article 15 and demand trial by court-martial at the time both were issued. He declined to do so. A commander's decision cannot or should not be reversed without compelling evidence that it was unlawful or egregiously unfair. The applicant has presented no such evidence. d. Neither Article 15 affected his promotion over the years or continued service. For historical purposes, the Army has an interest in maintaining the accuracy of its records. The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created. There is a reluctance to recommend that those records be changed. While it is understandable the applicant desires to now remove the two Article 15s from his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date. 3. With respect to the GOMOR: a. The evidence of record shows the applicant received a GOMOR for misconduct and it was filed in his OMPF. He acknowledged he had read and understood the unfavorable information presented against him and submitted a statement in rebuttal. Subsequently, the GOMOR was referred by a general officer for filing in the performance section of his OMPF. b. The GOMOR was properly administered in accordance with applicable regulations and properly filed in performance section of his OMPF. There is no evidence of any violation of any of the applicant’s rights. He has provided insufficient evidence or argument to form a basis for moving the GOMOR from the performance section of his OMPF. c. Again, the Army has an interest in maintaining the accuracy of its records. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. As required by the applicable regulation, the GOMOR is properly filed in the performance section of his OMPF. There does not appear to be 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) AR20120003473 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120003473 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1