BOARD DATE: 8 August 2013 DOCKET NUMBER: AR20130010352 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 a general officer memorandum of reprimand (GOMOR), dated 15 August 2012, from his Official Military Personnel File (now properly known as the Army Military Human Resource Record (AMHRR)). 2. The applicant states he was given an administrative MOR which needs to be taken out of his record. He appealed this through the Department of the Army Suitability Evaluation Board (DASEB) but was told he needed to be in the rank/pay grade of SSG/E-6 or higher before they would consider his case. Rank is not an issue with this matter because as his Judge Advocate General (JAG) defense counsel has stated in a letter to his commander the reprimand should not have been placed in his AMHRR. 3. He continues by stating the reason the reprimand needs to be removed from his record is stated very clearly in Army Regulation 27-10 (Military Justice), paragraph 3-12 (Statute of Limitations). What was given to him was a clear form of nonjudicial punishment (NJP), and according to the statute of limitations it is against Army regulations to give any Soldier a nonjudicial form of punishment if the punishment is for an offense that occurred more than 2 years prior. His offense took place in 2006. The Army waited until 2012 to try to discharge him due to his conviction but he won the case and was retained because he was able to prove that he informed the command about it once it happened. Now they have issued him an administrative MOR. This is not a case of whether or not he committed the acts mentioned in the reprimand; it is a simple case of his command violating Army Regulation 27-10, paragraph 3-12. The fact that he is not an E-6 has no bearing on the fact that this reprimand should have never been placed in his record in the first place. 4. The applicant provides: * page 7 of Army Regulation 27-10 * JAG Defense Counsel memorandum * DASEB memorandum CONSIDERATION OF EVIDENCE: 1. The applicant was serving in the U.S. Army Reserve in the rank/grade of specialist/E-4 at the time of his request. 2. His record shows that, on 15 August 2012, the Commander, 807th Medical Command (Deployment Support), reprimanded the applicant for being convicted by a jury in Darke County, Ohio of the felony offense of attempted unlawful sexual conduct with a minor. Court records reflected he attempted to have sexual conduct with a person 13 years of age. The GOMOR states the applicant's convicted offense was shameful, reprehensible, and disgraceful. The nature of his conviction was shocking and appalling. It was inconsistent with military standards and standards of conduct in our society. The applicant's actions resulting in his conviction caused the GOMOR-imposing authority to have a complete loss of confidence in the applicant's moral and ethical standards. a. The GOMOR stated it was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). b. On 18 August 2012, the applicant acknowledged receipt of the GOMOR. He indicated he would submit a statement on his behalf, but evidence indicates he failed to do so by the suspense given. c. His chain of command recommended filing the GOMOR in his AMHRR. d. On 14 September 2012, the imposing authority directed the GOMOR be filed in the applicant’s AMHRR. The GOMOR is in his AMHRR. 3. He provides a USAR JAG Defense Counsel letter, subject: Counseling Form - Applicant, dated 2 April 2013, addressed to Captain (CPT) JA. Therein, CPT JPM stated he had been assigned as defense counsel for the applicant for the past 2 years. Approximately a month prior, the applicant had been issued a DA Form 4856 (Developmental Counseling Form) for a variety of alleged infractions. a. CPT JPM stated he was not writing the letter to deny or dispute any of the claims. However, he was writing the letter to inform CPT JA that the counseling form was in clear violation of Army Regulation 27-10 (Military Justice), paragraph 3-12. The regulation states, "Non-judicial punishment may not be imposed for offenses which were committed more than 2 years before the date of imposition." He stated the counseling form showed no infractions which took place within the last 2 years prior to the date of issuance. b. He suggested that CPT JA kindly remove the counseling form from the applicant's personnel file. The applicant was in the process of transferring out of that unit. Failure to remove the counseling form would result in the necessary action(s) to see that the "file" was removed. 4. On 20 May 2013, the DASEB stated it was unable to act on the applicant's request to remove the GOMOR in question from his AMHRR due to his rank/pay grade being less than SSG/E-6. 5. Army Regulation 27-10 (Military Justice), paragraph 3-3, states nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ. Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct. Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies. These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among nonpunitive measures are denial of pass or other privileges, counseling, administrative reduction in grade, administrative reprimands and admonitions, extra training, bar to reenlistment, and military occupational specialty reclassification. These two separate and distinct kinds of authority should not be confused. a. Commanding officers have authority to give admonitions or reprimands either as an administrative measure or as nonjudicial punishment. b. A written administrative admonition or reprimand will contain a statement that it has been imposed as an administrative measure and not as punishment under UCMJ, Article 15. Admonitions and reprimands imposed as punishment under UCMJ, Article 15, whether administered orally or in writing, should state clearly that they were imposed as punishment under that article. 6. Army Regulation 27-10, paragraph 3-12, states nonjudicial punishment may not be imposed for offenses which were committed more than 2 years before the date of imposition. 7. Army Regulation 600-37 (Unfavorable Information) states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. a. Paragraph 3-2c states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. b. 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 AMHRR. DISCUSSION AND CONCLUSIONS: 1. The applicant contends the GOMOR was issued as nonjudicial punishment and therefore, improperly filed in his AMHRR, due to the statute of limitations. It is not clear whether his JAG defense counsel is referring to the same document. However, the GOMOR in his AMHRR specifically states it was imposed as an administrative measure and not as punishment under Article 15 of the UCMJ. Regulatory policy lists counseling and administrative reprimands as nonpunitive measures. Therefore, the statute of limitations does not apply to the applicant's GOMOR. 2. In order to have a GOMOR removed from his AMHRR, he must show with clear and convincing evidence that the GOMOR is untrue or unjust. The GOMOR was properly imposed in compliance with applicable regulations and is properly filed in the applicant's AMHRR. He has not provided clear and convincing evidence the GOMOR was not true or is unjust or that the presumption of regularity should not be applied. 3. In view of the forgoing, there is an insufficient basis to remove the GOMOR from his OMPF. 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) AR20130010352 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130010352 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1