BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20170017009 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20170017009 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 11 March 2005, from his Official Military Personnel File (OMPF). 2. The applicant states: a. In 2005, he received a GOMOR for driving under the influence (DUI) of alcohol and the GOMOR was placed in his OMPF. However, after court proceedings in 2006, the charges were reduced and he was convicted of careless and reckless driving instead of DUI. b. In 2010, he petitioned the Army Review Boards Agency to move the GOMOR to the restricted folder of his OMPF because he believed the purpose of the GOMOR had served its intent at that time. c. With the Army's end strength in flux, it is unclear when and if the next round of Qualitative Management Program and Qualitative Service Program selections may take place. As longs as the GOMOR remains in his file, he is in danger of being selected for one of those programs, despite the fact that, when viewed in total, his career has been nothing short of exemplary save this one extremely poor exercise in judgment. d. Army Regulation 27-10 (Military Justice), paragraph 3-37, and Table 3-2 (Removal of Records of Nonjudicial Punishment (NJP) from Military Files), allow for the transfer or removal of such records when punishment has served its intended purpose, has been in the OMPF for at least 1 year since the imposition of the letter (memorandum) of reprimand, the Soldier is at least a staff sergeant, and has received one noncommissioned officer evaluation report (NCOER) since the filing of the letter (memorandum) of reprimand. e. He now requests removal of the GOMOR from his OMPF based on his personal and professional conduct over the last 12 years. Since filing of the GOMOR, he has continued to serve the Army honorably and with distinction and has had no further incidents that impugn his military service or personal conduct. The following are his achievements since 2005: * promoted to sergeant first class * graduated from the Defense Equal Opportunity Management Institute * served honorably as Equal Opportunity Advisor at the Forces Command Headquarters * served honorably as a Sexual Assault Response Coordinator at Forces Command Headquarters * completed all three levels of the Army NCO Education System * he was awarded five Army Good Conduct Medals, the Meritorious Service Medal, three Army Commendation Medals, and three Army Achievement Medals * completed his associate's degree in general studies and is currently working to attain a bachelor's degree in criminal justice * currently serves as the senior human resources sergeant at the 15th Military Police Brigade at Fort Leavenworth, KS 3. The applicant provides: * self-authored letter * U.S. District Court for the Eastern District of North Carolina, Western Division, charges, dated 21 June 2005 * U.S. District Court, Eastern District of North Carolina, Western Division, Judgement in a Criminal Case, dated 14 April 2006 * five DA Forms 2166-8 (NCOER) covering the periods 2 June 2012 through 1 June 2013, 2 June 2013 through 1 June 2014, 2 June 2014 through 1 June 2015, 2 June 2015 through 31 December 2015, and 1 January 2016 through 30 December 2016 * Enlisted Record Brief, dated 4 October 2017 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 31 January 2002. He is currently serving in the rank of sergeant first class stationed at Fort Leavenworth, KS. 2. On 11 March 2005, the Commanding General, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), issued a GOMOR to the applicant for speeding 63 miles per hour in a 45-mile per hour zone, driving with a suspended license, and DUI of alcohol on 26 February 2005. A breathalyzer test administered at the time of his arrest established his blood alcohol content as .09 percent. a. The GOMOR-imposing authority stated the applicant was being reprimanded for this flagrant disregard for the law, the safety of his fellow Soldiers, and the welfare of the general public. He stated this conduct constituted a serious departure from the high standards expected of Soldiers in this command and would not be tolerated. b. The GOMOR was imposed as an administrative measure and not as NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). He was advised that the GOMOR-imposing authority intended to direct filing the GOMOR in his OMPF. c. He was further advised he had the right to submit matters in his behalf and that his response or rebuttal to the GOMOR must arrive within 7 days of receipt of the memorandum. 3. He acknowledged receipt of the GOMOR on 4 April 2005, having read and understood the unfavorable information presented against him, and elected not to submit a statement in his behalf. 4. His company commander recommended filing the GOMOR in the applicant's unit file for a period of 1 year or until his reassignment to another general court martial jurisdiction, whichever is sooner. His battalion and brigade commanders recommended permanently filing the GOMOR in the applicant's OMPF. 5. On 2 May 2005 after reviewing the case file, the filing recommendations of the applicant's chain of command, and any supporting documentation, the GOMOR- imposing authority directed permanently filing the GOMOR in the applicant's OMPF. 6. U.S. District Court for the Eastern District of North Carolina, Western Division, documentation, dated 21 June 2005, shows he was charged with: a. count one: operating a motor vehicle upon a street, highway, or public vehicular area on the Fort Bragg Military Installation on or about 26 February 2005 while under the influence of an impairing substance and/or after having consumed sufficient alcohol that he had a blood alcohol concentration of .08 percent or more; b. count two: operating a motor vehicle upon a street, highway, or public vehicular area on the Fort Bragg Military Installation on or about 26 February 2005 while his driver's license was suspended; and c. count three: operating a motor vehicle upon a street, highway, or public vehicular area on the Fort Bragg Military Installation on or about 26 February 2005 in excess of at least 15 miles per hour over the legal limit, to wit: 63 miles per hour in a 45-mile per hour zone. 7. U.S. District Court, Eastern District of North Carolina, Western Division, Judgement in a Criminal Case, dated 14 April 2006, shows he pled guilty to one lesser-included charge of careless and reckless (driving) and counts two and three were dismissed on the motion of the United States. 8. He appealed to the Department of the Army Suitability Evaluation Board (DASEB) on 23 August 2010 for transfer of the GOMOR to the restricted folder of his OMPF. On 29 October 2010, the DASEB determined the evidence submitted, to include the length of time since the incident, his performance since the GOMOR, and one promotion with one pending, was sufficient to warrant transfer of the GOMOR from the performance folder to the restricted folder of his OMPF. 9. The GOMOR is currently filed in the restricted folder of his OMPF. 10. He provided five NCOERs covering the periods 2 June 2012 through 1 June 2013, 2 June 2013 through 1 June 2014, 2 June 2014 through 1 June 2015, 2 June 2015 through 31 December 2015, and 1 January 2016 through 30 December 2016. None of the NCOERs contain any derogatory information and all of the ratings are either "Success," "Excellence," "Successful," or "Superior." 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 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 the Army Board for Correction of Military Records). 3. Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, and the rules for courts-martial. a. Chapter 3 pertains to NJP and implements and amplifies Article 15 of the UCMJ. It prescribes requirements, policies, limitations, and procedures for commanders at all levels imposing NJP, members on whim this punishment is to be imposed, and other persons who may take some action with respect to the proceedings. This chapter does not pertain to letters of reprimand that have been imposed as administrative measures and not as punishment under Article 15 of the UCMJ. b. Paragraph 3-37 specifically pertains to the distribution and filing of DA Form 2627 (Record of Proceedings Under Article 15, UCMJ). c. Table 3-2 pertains only to the removal of records of NJP from military files. It does not pertain to the removal of letters of reprimand that have been imposed as administrative measures. DISCUSSION: 1. The applicant's records indicate he was arrested for speeding, driving with a suspended license, and driving under the influence of alcohol. A breathalyzer test administered at the time of his arrest established his blood alcohol content as .09 percent. 2. He was issued a GOMOR by the Commanding General, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), for speeding 63 miles per hour in a 45-mile per hour zone, driving with a suspended license, and driving while under the influence of alcohol with a blood alcohol content of .09 percent. While his company commander recommended filing the GOMOR locally, his battalion and brigade commanders both recommended filing the GOMOR in his OMPF. After a review of the case and his chain of command's recommendations, the GOMOR-issuing authority used the discretion afforded his position and authority to direct its permanent placement in the performance folder of the applicant's OMPF. 3. After the issuance of the GOMOR, the applicant pled guilty to a lesser charge of careless and reckless driving. The charges of speeding and driving with a suspended license were dismissed. 4. 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. 5. He appealed to the DASEB for transfer of the GOMOR to the restricted folder of his OMPF. The DASEB reviewed the evidence and deemed it appropriate to transfer the GOMOR to his restricted folder based on his performance and the length of time since issuance of the GOMOR. 6. The governing regulation 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. BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20170017009 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from his Official Military Personnel File the general officer memorandum of reprimand dated 11 March 2005 and all allied documents. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017009 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170017009 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2