IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20160008421 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____X____ ___X_____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20160008421 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 a general officer memorandum of reprimand (GOMOR), dated 18 December 1997, to the restricted folder of his Official Military Personnel File (OMPF). 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 removal of the GOMOR 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: 26 July 2016 DOCKET NUMBER: AR20160008421 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 18 December 1997, from his Official Military Personnel File (OMPF) or, alternatively, transfer of the GOMOR to the restricted folder of his OMPF. 2. The applicant states: * all other enlisted records pertaining to him have been moved to the restricted folder of his OMPF * the severity of the original punishment is not in question, but he requests consideration be given to the fact that he has since learned and grown from the experience * he received an honorable discharge from active duty and subsequently enlisted in the U.S. Army Reserve and obtained a commission * he performed above and beyond since the incident occurred and continued to make positive strides as a noncommissioned officer, a commissioned officer, deploying as a platoon leader, and holding positions of increasing responsibility, to include company command * he was previously unaware of how to correct this issue * his company and battalion commanders at the time recommended filing the GOMOR locally, based on the character of his service * his brigade commander did not indicate any reason for his recommendation to file the GOMOR in his OMPF or for not taking into consideration the recommendations of his company and battalion commanders * this carried substantial weight with the approval authority 3. The applicant provides the GOMOR, his acknowledgment of receipt of the GOMOR, the statement he submitted in his behalf, his chain of command endorsements, and the approval authority’s filing determination. 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 enlisted in the Regular Army on 29 December 1995. He is currently a captain in the U.S. Army Reserve. 3. On 18 December 1997, the Deputy Commanding General, I Corps and Fort Lewis, issued a GOMOR to the applicant for suspicion of driving under the influence of alcohol on 2 November 1997. A breathalyzer test was administered and resulted in a finding of .12 grams of alcohol per 210 liters of breath. a. The GOMOR imposing authority stated that such conduct as he displayed would not be tolerated. There was no excuse for his complete disregard for the law and policies of the State of Washington and the U.S. Army. Enlisted Soldiers are entrusted with some of the most responsible duties in today’s Army and must be relied upon to exhibit sound judgment. His conduct failed to meet the expected standard. b. The GOMOR was imposed as an administrative measure and not as nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice. He was advised that while this was an administrative measure, it had significant consequences for his career and it was considered serious enough to warrant filing in the performance file of his OMPF. c. He was advised he had the right to submit matters in his behalf and that his response or rebuttal to the GOMOR must arrive within 72 hours of the date the memorandum was provided to him. 4. He acknowledged on 6 January 1998, having read and understood the unfavorable information presented against him and submitted a statement in his behalf on 8 January 1998. He stated: a. He made a bad judgment that put his previously unblemished military career at risk. In his defense, he did not willfully or intentionally set out to disobey any laws or orders. b. He was under a great amount of mental and physical fatigue during the time before the incident due to his unit’s preparation for joint readiness training at Fort Polk, LA. He pushed himself to the limit not only as the only armorer, assuring that the unit’s weapons were maintained and properly repaired, but also as the supply clerk, single-handedly assuring all the unit’s supply needs were met since the supply sergeant had already departed for Fort Polk, LA, in preparation for the unit’s arrival. c. He let himself get engrossed in his work and did not allow himself enough time for sleep. This contributed to a lack of mental sharpness and sound judgment on his part. He cannot blame anyone but himself for the incident. Nonetheless, this was an isolated incident. It was his first and last major brush with the law. He suffered mental and emotional anguish since the incident and will continue to do so until resolution, but strives to continue to serve the unit to the best of his abilities. 5. On 9 January 1998, his company commander recommended filing the GOMOR in local informational personnel files, to be destroyed 1 year after transfer or separation. He stated except for this incident, the applicant performed in an outstanding fashion and displayed sincere regret. On 13 January 1998, his battalion commander likewise recommended filing the reprimand in local information personnel files for destruction 1 year after transfer or separation. He wrote he concurred with the company commander. The applicant had a tremendous amount of potential to continue to serve the Army. On 26 January 1998, the brigade commander recommended filing the GOMOR in his OMPF. 6. On 6 February 1998, after reviewing the case file, the filing recommendations of the applicant's chain of command, and the applicant’s statement the GOMOR imposing authority directed permanently filing the GOMOR in the applicant's OMPF. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged from active duty on 29 December 1995 due to the completion of required active service and transferred to the Army National Guard. 8. He enlisted in the U.S. Army Reserve on 26 April 2003 and was appointed as a Reserve commissioned officer of the Army on 3 February 2006. 9. The GOMOR is filed in the performance folder of his OMPF. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) provides 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. 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 folder. 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. Paragraph 7-2 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. Such 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. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board). DISCUSSION: 1. Records indicate he was apprehended for driving under the influence of alcohol. He does not dispute this fact. 2. He was subsequently issued a GOMOR by the Deputy Commanding General, I Corps and Fort Lewis, to which he provided a rebuttal. His company commander and battalion commander both recommended filing the GOMOR locally, for destruction after 1 year. His brigade commander recommended filing it in him OMPF. After review of the case, the statement he made in his behalf, and his chain of command’s recommendations, the GOMOR issuing authority used the discretion afforded his position and authority to directing its permanent placement in the applicant’s OMPF. 3. The applicant claims the incident was an isolated incident resulting from the mental and physical fatigue he felt in helping prepare his unit for joint readiness training at Fort Polk, LA, as both the armorer and the supply sergeant. He has learned from the incident and grown as Soldier. 4. The evidence and argument presented by the applicant do not show any error or injustice with regard to the placement of the GOMOR in his OMPF. However, based on the fact that his company and battalion commanders at the time recommended filing the GOMOR locally, the length of elapsed time since the incident, and that he has since attained the rank of captain, it appears the GOMOR has served its intended purpose. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008421 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008421 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2