IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20170004196 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 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 22 February 2013 to the restricted folder of his official military personnel file. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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. IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20170004196 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :AIR :RAS :RML GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 November 2017 DOCKET NUMBER: AR20170004196 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 22 February 2013 from his official military personnel file (OMPF) or, in the alternative, that the contested GOMOR be transferred to the restricted folder of his OMPF. He also requests a personal appearance before the Board. 2. The applicant states he received a GOMOR in February 2013 and he was demoted from sergeant (SGT)/E-5 to specialist (SPC)/E-4. Nearly 13 months later, again he was promoted to the rank of SGT and a year later he was promoted to the rank of staff sergeant (SSG)/E-6. He was humbled going through this situation. It has made him a better leader and he has learned from his mistake. He has: * two excellent Noncommissioned Officer Evaluation Reports (NCOER) (DA Form 2166-8 and DA Form 2166-9-2) * exceptional Service School Academic Evaluation Reports (DA Forms 1059) for attending the Advanced Leadership Course as an Infantryman and the 91C (Licensed Practical Nurse) course 3. He will be eligible for consideration for promotion to sergeant first class and hopes the GOMOR will be removed from his record or placed in his restricted folder, because he wants to continue to train, mentor, and lead Soldiers. He has shown great success since the incident. 4. The applicant provides: * DA Form 2166-8 for the rating period 20140501 through 2015-04-30 * DA Form 2166-9-2 for the rating period 20150501 through 20160621 * DA Form 1059 and certificate for the Infantry Advanced Leader Course * Order 119-015, dated 29 April 2014, promoting him to SGT/E-5 * Order 153-004, dated 2 June 2015, promoting him to SSG/E-6 * Orders 079-007, dated 20 March 2015, for the Army Commendation Medal * Permanent Order (PO) 364-003, dated 29 December 2016, for the Driver and Mechanic Badge (Wheeled) * PO 139-08, dated 19 May 2011, for the Valorous Unit Award * PO 281-67, dated 8 October 2009, for the Meritorious Unit Commendation * Certificate for completion of the Utilities Equipment Repairer Course * Certificate of Affiliation in the U.S. Army Ordnance Corps * Enlisted Record Brief CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 2 November 2006 and he holds military occupational specialty (MOS) 11B (Infantryman). He served in Afghanistan from July 2008 to June 2009. 2. He reenlisted in the RA for 6 years on 15 March 2009 and he was advanced to SGT/E-5 on 1 June 2010. He served in Germany from around May 2012 to May 2015. He was assigned to A Troop, 1st Squadron, 2nd Armored Cavalry Regiment. 3. On 3 February 2013, German police conducted a traffic stop of a vehicle owned and operated by the applicant in Nuremberg, Germany. When the police made contact, an odor of alcoholic beverage was detected. He was administered a breathalyzer test that yielded a reading of .68 milligrams/liter. He was transferred to the Ansbach Military Police Station where he was administered a series of sobriety tests which he failed. 4. On 22 February 2013, the applicant was reprimanded by the Commander, Seventh U.S. Army Joint Multinational Training Command (designated as General Court-Martial Convening Authority), for operating a motor vehicle on a public road while drunk. The GOMOR states: a. He was stopped by German police and administered a breath alcohol test which resulted in a converted reading of .138 grams of alcohol per 100 milliliters of blood. He drove while this reading exceeded the limit set by the Uniform Code of Military Justice (UCMJ). His decision to drive drunk showed a gross lack of judgment and he made this decision without concern for the safety of either himself or others, such as innocent people who might have been on the road. b. As an NCO, he had been given a sacred trust: leading Soldiers. This led the imposing officer to question whether he (the applicant) could be trusted with the responsibility to lead Soldiers after displaying such poor judgment, poor planning skills, and an indifference toward the well-being of others by driving drunk. 5. On 27 February 2013, the applicant acknowledged receipt of the GOMOR and indicated he would submit matters in rebuttal. He was given until 11 March 2013 but he failed to submit any evidence in rebuttal. 6. On 18 April 2013, after carefully considering the reprimand, the circumstances surrounding the incident, and the chain of command recommendations, the imposing officer ordered the GOMOR to be placed permanently in the applicant's OMPF. 7. Meanwhile, on 25 March 2013, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for physically controlling a vehicle while drunk on 3 February 2013. His punishment consisted of reduction to SPC/E-4, a forfeiture of pay for 2 months (suspended), extra duty, restriction (suspended), and an oral reprimand. He elected not to appeal. 8. Since receiving this GOMOR, the applicant's records show he: * was promoted to the rank of SGT/E-5 on 1 May 2014, reenlisted for 6 years on 11 July 2014, and was promoted to SSG/E-6 on 1 June 2015 * was awarded two Army Achievement Medals, one for service from 16 July to 1 October 2014 and another for achievement from 19 to 20 May 2014 * received an NCOER for the rating period 1 May 2014 through 30 April 2015 reflecting "Among the Best" and "Superior" ratings * received a DA Form 2166-9-2 for the rating period 1 May 2015 through 21 June 2016 reflecting a rating of "Far Exceeded Standards" and "Highly Qualified" * received a DA Form 1059 and certificate for the Infantry Advanced Leader Course confirming completion of this course in July 2015 * was awarded the Army Commendation Medal for service from May 2012 to May 2015 and the Driver and Mechanic Badge in December 2016 * served in units (during a previous deployment) during periods for which the units were awarded the Valorous Unit Award and Meritorious Unit Commendation * completed the Utilities Equipment Repairer Course * was affiliated with the U.S. Army Ordnance Corps REFERENCES: 1. Army Regulation (AR) 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. The intent of this regulation is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Chapter 1 stipulates 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. b. Chapter 3 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. c. Chapter 7 states a memorandum of reprimand may be filed in a Soldier's OMPF upon the order of a general officer-level authority (GCMCA) 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 of AR 600-37. Paragraph 7-2 (Policies and standards) 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. 2. AR 600-8-104 (Army Military Human Resources Record) governs the composition of the OMPF and states the performance section 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. Table B-1 covers authorized documents. Army Personnel Records Division, will update the list of authorized documents for filing in the OMPF quarterly. The new list of authorized documents will supersede the list in Table B-1, Appendix B of AR 600-8-104. The latest update, dated 15 December 2015, states: * File only Letters of Reprimand designated for filing in the OMPF * Letters not designated for filing in the OMPF will not be filed in the interactive Personnel Electronic Records Management System these documents will be filed locally 3. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. 2. The applicant was stopped on 3 February 2013 by German police who administered a breath alcohol test which resulted in a converted reading of .138 grams of alcohol per 100 milliliters of blood. Accordingly, he received a GOMOR for operating a motor vehicle on a public road while drunk. 3. He was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision. His chain of command provided their recommendations and after considering the circumstances surrounding the incident and all matters submitted by the applicant, along with the recommendations of subordinate commanders, the GCMCA ordered the GOMOR be placed permanently in the applicant's OMPF. 4. A GOMOR is an administrative tool used by the imposing officer to train and rehabilitate. Once the GOMOR was filed on his OMPF, it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 5. The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of his OMPF. There is no evidence of any violation of any of the applicant’s rights. As required by the applicable regulation, the GOMOR is properly filed in the performance section of his OMPF. 6. There is evidence the applicant has learned from his mistake and continued to Soldier despite the GOMOR. He reenlisted, reclassified, received outstanding NCOERs, and he also received some awards and decorations. 7. An argument can be made that since a GOMOR is a teaching tool and since his performance indicates he has learned his lesson, the GOMOR may have served its intended purpose and its transfer to the restricted portion of is OMPF may be warranted. An argument can also be made that removing or transferring the GOMOR would place the applicant on equal footing with other NCOs who have served without the blemish of a GOMOR. 8. The Board must determine if the GOMOR in question should be removed from the applicant's OMPF or transferred to the restricted portion of his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004196 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170004196 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2