IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20160007204 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ____x__ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20160007204 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20120003684, dated 30 August 2012. As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by transferring the following documents to the restricted folder of his OMPF: * GOMOR, dated 29 October 2008, with all allied documents * Memorandum, dated 27 April 2010, from the Department of the Army Suitability Evaluation Board, Docket Number AR20100010964 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief to amend the ABCMR's decision in Docket Number AR20120003684, dated 30 August 2012. As a result, the Board recommends denial of so much of the application that pertains to removing the GOMOR, dated 29 October 2008, from his OMPF. _____________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. IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20160007204 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 to remove a general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF). 2. The applicant states, in effect, the GOMOR is not an accurate reflection of his past or present military service. a. He takes full responsibility for his own actions, and recognizes his poor/reckless judgment jeopardized his future advancement. b. The GOMOR is over 7 years old, and he has not committed any infractions nor had any instances of unethical behavior since (implying the GOMOR has served its purpose, and, if not removed, it would be in the Army's best interest for its transfer to his restricted folder in his OMPF). c. The Qualitative Management Program (QMP) panel reviewed his record and determined he should remain on active duty. 3. The applicant provides a copy of the memorandum from the QMP panel, dated 8 May 2015. 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 AR201200033684 on 30 August 2012. 2. The applicant submitted his initial application in 2012, which was denied. He then requested reconsideration on 17 March 2014, but this request was administratively closed in accordance with Army Regulation 15-185 (ABCMR) because its submission exceeded the timeliness standards. Although his current request for reconsideration also exceeds the timeliness standards, it merits consideration because he offers new evidence in the form of a letter from the QMP panel. 3. The applicant enlisted in the Regular Army on 14 August 1996, and, after completing initial training, was awarded military occupational specialty 91B (now 68W) (Healthcare Specialist). He has served through multiple reenlistments in a variety of Stateside and overseas assignments, and attained the rank/grade of sergeant first class (SFC)/E-7. 4. He completed multiple deployments in support of contingency/combat operations including Bosnia and Iraq. He was awarded or authorized numerous individual, service, and unit awards, most notably the Air Medal, Meritorious Service Medal, seven awards of the Army Commendation Medal, five Army Achievement Medals, and the Combat Medical Badge. 5. On 10 October 2008, at Fort Riley, KS, military police (MP) personnel observed a vehicle that failed to use a turn signal. An MP stopped the vehicle and the operator was determined to be the applicant. The MP detected an odor of alcohol emitting from the applicant. The MP administered a series of field sobriety tests that showed multiple signs of impairment. The MP apprehended the applicant and transported him to the MP station, where the applicant refused to submit to further alcohol testing. 6. On 29 October 2008, the Commanding General (CG), 1st Infantry Division, reprimanded the applicant for driving under the influence of alcohol. The GOMOR restated the events of 10 October 2008. It also stated driving under the influence was a serious offense, as he was not only putting his life in danger, but also the lives of those who were on the road with him. 7. After acknowledging receipt of the GOMOR, he submitted a rebuttal wherein he stated, in summary: * he was guilty of the offense of failing to signal (left turn) * he was the designated driver for two of his team members; however, he had consumed only one 16 oz. beer * despite the MP's findings of impairment, he was not impaired * the MP requested the breathalyzer and he (the applicant) refused; an action that he has regretted as it displayed a flaw in his character and integrity 8. His brigade commander and deputy brigade commander recommended the GOMOR be filed locally. The brigade commander opined that based on the evidence, there was reasonable doubt as to whether the applicant was driving under the influence. Additionally, his refusal to take the breathalyzer test was an emotional response to his belief that he was being harassed and wrongfully suspected. 9. On 26 November 2008, after carefully considering the circumstances surrounding the incident, all matters submitted by the applicant in defense, extenuation and/or mitigation, as well as the recommendations of subordinate commanders, the CG ordered the permanent placement of the GOMOR in the applicant's OMPF. 10. On 22 April 2010, the Department of the Army Suitability Evaluation Board (DASEB) denied his petition to transfer the GOMOR to the restricted section of his OMPF (Docket Number AR201000010964). The letter to the applicant from the President of the DASEB is in his performance folder. The record of proceedings (ROP) is in the applicant's restricted folder. 11. On 30 August 2012, the ABCMR denied his petition to remove the GOMOR from his OMPF or transfer it to the restricted section of his OMPF (ABCMR Docket Number AR20120003684). Both the letter to the applicant from the Director, ABCMR and the ROP are located in the restricted folder 12. Since the GOMOR, the applicant's OMPF contains the following documents: a. Bronze Star Medal Certificate for meritorious service in Iraq during the period 24 November 2008 to 15 November 2009. He was also awarded the Joint Service Commendation Medal on 25 June 2012. b. Eight noncommissioned officer evaluation reports (NCOER) covering the rated periods 1 September 2008 through 31 December 2015. All reports are very favorable, with the raters indicating the applicant was among the best. In addition, all senior raters showed overall performance as Successful/1, and overall potential for promotion and/or service as Superior/1. c. He earned both an Associate's Degree in 2009, a Bachelor's Degree in 2012, and a Master’s Degree in 2014. 13. The applicant provides a copy of a memorandum, dated 8 May 2015, Subject: Department of the Army Consideration for Denial of Continued Active Duty Service under the QMP. The memorandum essentially states: * the QMP selection board conducted a comprehensive review of the applicant's record for potential denial of continued service; the board recommended retention * based on this recommendation, the Director, Military Personnel Management (DMPM) approved his retention on active duty, permitting him to remain until the established retention control point for his grade, unless separated earlier under appropriate regulation or statute * the applicant would not be subjected to a future QMP board unless new derogatory information was posted in his OMPF; should that happen, his entire record would again be subject to review REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures with regard to derogatory information. a. Paragraph 1-1 states, in relevant part, that the intent of the regulation is to protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility. b. 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. c. 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. d. 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. e. 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 Army Regulation 600-37. f. Paragraph 7-2 (Policies and Standards) states: (1) 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. (2) Unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. 2. 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. a. Once properly 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. b. Table B-1, Appendix B states letters of reprimand, admonition, and censure of a non-punitive nature are filed in the performance portion of the OMPF only upon the order of a general officer. DISCUSSION: 1. The evidence of record confirms the GOMOR was properly processed and filed in the applicant's OMPF in accordance with the applicable regulation. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the GOMOR process. Additionally, there is no indication the GOMOR was either unjust or untrue. 2. The applicant provides a memorandum from the QMP selection board showing, despite the presence of the GOMOR in his OMPF, the board recommended him for retention. This recommendation was approved by the DMPM. Given the DMPM's action, the applicant suggests it should serve as the basis for removal of the GOMOR. 3. By regulation, 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. To support alteration or removal of the document from the OMPF, an individual has the burden to provide clear and convincing evidence that the document is untrue or unjust, in whole or in part, to support its removal from the OMPF. The applicant does not submit such proof, and the fact he has since been selected for retention does not equate to a vindication of the misconduct addressed in the GOMOR. 4. In reviewing the 7 years since the indiscretion that led to his GOMOR, however, it is apparent what occurred was an isolated incident. As such, the evidence indicates the GOMOR has served its purpose. a. Since receiving the GOMOR, all of his NCOERs have been very favorable, with every rater indicating he was among the best, and all senior raters identifying his performance and potential as Successful/1 and Superior/1, respectively. b. He has also received significant awards (Bronze Star Medal and Joint Service Commendation Medal) and earned an Associate's, Bachelor's, and Master’s degree. 5. While there is not sufficient evidence to remove the GOMOR as it is a facially valid record, there is sufficient evidence to show it would be in the best interest of the Army to transfer the GOMOR and allied documents, including the 2010 DASEB memorandum, to the restricted portion of his OMPF (the first ABCMR document is already filed in the restricted folder). The transfer should be effective the Board date, and will not retroactively affect any personnel actions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007204 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007204 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2