IN THE CASE OF: BOARD DATE: 29 December 2009 DOCKET NUMBER: AR20090021632 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 reconsideration of his earlier request for transfer of a General Officer Memorandum of Reprimand (GOMOR), dated 10 September 2006, from the performance section of his Official Military Personnel File (OMPF) to the restricted portion of his OMPF. He also requests that if this action is approved, his file be reviewed by the 2009 Lieutenant Colonel (LTC) Army promotion list (APL) board. 2. The applicant states that upon reviewing the Record of Proceedings it became evident that the Board had not received key, critical information from Major General (MG) (Retired) P------- and himself. He adds that he was unaware that the Board, unlike the Department of the Army Suitability Evaluation Board (DASEB) does not make additional contact and uses only the information provided by the Soldier. He quickly contacted MG (Retired) P------- who provided a letter of recommendation. He adds that, concurrent with this effort, he was directed by his unit to request sanctuary as he has reached 19 years and 5 months of creditable service toward retirement, but he is a two-time (soon to be three times) non-select for promotion to LTC. The presence of the GOMOR has prevented him from being promoted and its removal would allow him to request a special selection board (SSB) prior to his mandatory retirement in 2010. 3. The applicant provides an exchange of emails, dated 8 December 2008, with MG (Retired) P-------; a copy of a letter, dated 8 December 2009, from MG (Retired) P-------; a copy of a DA Form 4187 (Personnel Action), dated 16 November 2009; a copy of a letter, dated 2 August 2007, from a probation officer; a copy of his previously-submitted DA Form 67-9 (Officer Evaluation Report) for the period 8 September 2008 through 30 May 2009; and a copy of a previously-submitted GO letter, dated 13 July 2009, in support of his request. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090006783 on 3 December 2009. 2. The applicant submitted an exchange of emails, dated 8 December 2008, with MG (Retired) P-------; a copy of a letter, dated 8 December 2009, from MG (Retired) P-------; a copy of a DA Form 4187, dated 16 November 2009; and a copy of a letter, dated 2 August 2007, from a probation officer, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrants consideration by the Board. 3. The applicant's records show he was appointed as a second lieutenant and executed an oath of office on 15 June 1990. He subsequently entered active duty on 18 July 1990, completed several infantry training courses, including the Ranger, Airborne, and Air Assault Courses, served in various staff and leadership positions, and was honorably discharged on 1 May 1998 in the rank of captain (CPT) for miscellaneous reasons. 4. The applicant's records also show he was appointed as a CPT in the Minnesota Army National Guard (MNARNG) and executed an oath of office on 2 May 1998. He again served in various staff and leadership positions and was promoted to major (MAJ) on 27 November 2000. He was honorably separated from the MNARNG on 5 October 2005. 5. The applicant's records further show he was appointed as a U.S. Army Reserve (USAR) officer and executed an oath of office on 6 October 2005. He was assigned to a USAR Troop Program Unit, Headquarters and Headquarters Company, 88th Regional Readiness Command (RRC), Fort Snelling, MN. 6. On 9 May 2006, the Chief of Staff, 88th RRC, Fort Snelling, MN, appointed an investigation officer (IO) pursuant to Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) to conduct an investigation into the activities of the applicant at Fort Knox, KY, during preparation for Patriot Warrior Exercise on or about 18 March 2006. 7. A copy of the AR 15-6 investigation is not available for review with this case. However, the applicant's records show that the applicant's acts of misconduct were in violation of the provisions issued in a court-ordered probation plan following the applicant's conviction by a civilian court. The applicant was found guilty of trespassing and ordered not to consume alcohol and to notify his probation officer before leaving the State of Minnesota. The IO found and substantiated the following findings: a. The applicant was seen by several credible witnesses consuming alcohol at Fort Knox, KY, in March 2006. b. Through his own admission, the applicant had left the State of Minnesota without prior notification or permission of his probation officer. c. The applicant was found to have used indecent language, specifically discussing sexual matters both on and off duty at inappropriate times and in inappropriate company in a manner that made those around him uncomfortable. 8. On 10 September 2006, the applicant received a GOMOR from the Commanding General (CG), 88th RRC, MG P------- (now retired) for his actions of March and May 2006, during which times he was in clear violation of probation established by the State of Minnesota following his criminal conviction for harassment/stalking in December 2005. The GOMOR states the terms of his probation restricted him from the consumption of alcohol and required him to inform his probation officer prior to being away from home more than 3 days and to obtain permission from his probation officer before leaving the state of Minnesota. The details of his conviction and sentence are not available for review. According to the GOMOR, the applicant had previously received a GOMOR on 9 February 2006 for the misbehavior which led to his conviction in civilian court in December 2005. The CG chose at that time to give the applicant a second chance by filing that GOMOR in his local file as opposed to his permanent Army record. The GOMOR also states: a. The applicant violated his probation restrictions in both March and May of 2006, while in a military duty status, when he consumed alcohol and traveled out of state, without permission. The investigation concluded that he engaged in conduct unbecoming an officer when he made repeated, inappropriate, and unwanted comments of a vulgar and sexual nature to, and in the presence of, other Soldiers within his command both on and off duty, while intoxicated and while sober. b. The applicant's criminal behavior and his disregard of acceptable standards of conduct were intolerable. The GOMOR states the applicant chose to ignore the warnings given to him in his previous reprimand and openly engaged in further misconduct. The CG stated he no longer had faith in the applicant's ability to conform his behavior to the high standards expected and demanded of an Army officer. The GOMOR stated the applicant's actions were in violation of state law, the Uniform Code of Military Justice, and Army regulations and brought discredit upon himself, the Officer Corps, and the U.S. Army. 9. On 29 September 2006, after reviewing the applicant's reply/rebuttal and consideration of the circumstances and alternative non-punitive measures, the CG directed that the GOMOR be filed in the applicant's OMPF. 10. On 9 October 2008, the DASEB determined that the evidence presented did not provide substantial evidence that the GOMOR had served its intended purpose and that its transfer would have been in the best interest of the Army. Accordingly, the DASEB denied the applicant's request to transfer the GOMOR to the restricted section of his OMPF. 11. On 27 October 2008, the applicant was ordered to active duty as a member of his USAR unit in support of Operation Iraqi Freedom and subsequently served in Iraq from 27 November 2008 to 8 October 2009. He was honorably released from active duty and transferred to his USAR unit on 1 November 2009. 12. On 8 December 2009, the ABCMR determined that the evidence presented did not demonstrate the existence of a probable error or injustice. Accordingly, the ABCMR denied the applicant's request to transfer the GOMOR to the restricted section of his OMPF. 13. The applicant submitted the following documentation in support of his request: a. A letter, dated 8 December 2009, from MG (Retired) P------- (the CG who imposed the GOMOR) in which he states that he reviewed the Officer Evaluation Report and letter from the applicant's commander in Iraq and noted his award of the Bronze Star Medal and that he is pleased to see he performed so well. Therefore, it appears to him that the GOMOR he issued him has served its intent and he recommends the Board's consideration for its removal. b. A letter, dated 2 August 2007, from a probation aide, Washington County, Cottage Grove, MN, in which the officer states that the applicant was sentenced in the Washington County Court on 28 December 2005 and was placed on probation for a period of 2 years. On 8 January 2007, the applicant appeared for a sentence review hearing and was granted an early discharge. His case had been closed and he is no longer on probation with the County. c. A DA Form 4187, dated 16 November 2009, requesting extension of his mandatory retirement date due having completed 19 years for retirement eligibility. 14. Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. In pertinent part, it states 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. Only letters of reprimand, admonition or censure may be the subject of an appeal for transfer to the restricted fiche. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. Appeals submitted under this provision will normally be returned without action unless at least one year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the GOMOR that he was furnished on 10 September 2006 should be transferred from the performance section to the restricted section of his OMPF. 2. The applicant received the GOMOR on 10 September 2006 for violating the terms of his probation, imposed by a State court, by drinking alcohol and failing to inform his parole officer of his trip outside the State. The applicant had previously received a GOMOR for stalking and harassment, the offenses that led to his probation. 3. According to the GOMOR, the applicant had previously been issued a GOMOR on 9 February 2006. At that time the imposing authority believed the applicant still had potential as a professional Army officer and chose to give the applicant a second chance by filing that GOMOR in the local file. The applicant violated this trust by his continued misconduct. 4. The applicant was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision. His response was received and considered. Subsequently, the CG ordered his GOMOR filed in the performance section of his OMPF. 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. 5. The fact that the former CG feels that the applicant has done well is noted. The applicant's efforts to overcome his problems are noteworthy. However, there is insufficient evidence of record to show that the GOMOR has served its purpose. Only 3 years have passed since the imposition of the GOMOR. In addition, that GOMOR was issued as a result of a continuation of earlier misconduct (for which leniency was granted in the form of filing an earlier GOMOR in his local file). However, this GOMOR is something that a promotion board should consider when comparing his records against those of his peers who do not have misconduct documented in their records, at least for the foreseeable future. 6. The applicant’s faithful service, recent deployment to Iraq, and desire to extend beyond his mandatory retirement date are not in question. However, The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit evidence that would satisfy this requirement. Therefore, there is no basis for granting the applicant's request. 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 to amend the decision of the ABCMR set forth in Docket Number AR20090006783, dated 3 December 2009. _______ _ 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) AR20090021632 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090021632 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1