ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 August 2019 DOCKET NUMBER: AR20170019550 APPLICANT REQUESTS: * reconsideration of his previous request to remove the General Officer Memorandum of Reprimand (GOMOR), dated 12 January 2012, and all associated files from his official record and into his restricted file * as a new issue, remove his civil conviction on 20100421 * personal appearance before the board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Compilation of Officer Evaluation Reports (OER) from 30 June 2001 to 15 October 2017 (18) * DA Form 1059 (Service School Academic Evaluation Reports) (3) * Public Affairs Officer (PAO) Qualification Course from 15 March 2006 to May 2006 * Combined Logistics Captains Career Course from 27 December 2007 to 2 May 2008 * Intermediate Level Education (ILE) from 4 October 2010 to 18 April 2012. * Humanitarian Service Medal (HSM) Memorandum, dated 7 June 2010 * Meritorious Service Medal (MSM) Certificates, dated 10 March 2014, and 4 October 2017 * Army Staff Identification Badge Certificate, dated 13 August 2015 FACTS: 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 AR20150003679 on 9 June 2015. 2. The applicant states he is requesting his action to be completed for various reasons: a. A recent determination was granted and he was offered to select continued service in the Active Guard Reserve (AGR) program for up to 24 years of commissioned service at his current rank of major. He has accepted a selective continuation (SELCON) option and has permanent change of station (PCS’d) to Fort Belvoir- Office of the Chief of Army Reserve (OCAR). He holds a chief/O-5 position in the Army Reserve communications section. Prior to accepting SELCON, he and his family were scheduled to retire from active federal service (AFS) on 31 January 2018. He will continue to compete for lieutenant colonel (LTC) in upcoming promotion boards. b. For the last 8 years of commissioned AGR service in reference to the incident causing the letter of reprimand, November 2009; he’s received zero disciplinary actions. c. He has reviewed his security clearance with favorable results and was granted a secret clearance after disclosing this incident and all personal information required. d. He was directed to an administrative review board as a result of this incident and was granted continued service in the AGR program, signed by the Chief of the Army Reserve and the Commander, Human Resources Command. e. For the last 8 years he has received “above average” ratings on the 10 OERs completed; out of these 10 OERs all but 2 were senior rated by general officers. f. He was awarded the HSM and 3 MSM’s. g. He has sought treatment for post-traumatic stress disorder (PTSD) as diagnosed and continues to make great strides living with his condition. h. Overall, he believes his service record, being offered and accepting the SELCON option for continued service, professional evaluations, professional accommodations, accepting personal responsibility for the letter of reprimand and seeking professional help to combat his personal issues merit consideration and resulting in the moving of his letter of reprimand, civil conviction and associated files to the restricted file of his official military personnel file (OMPF). 3. The applicant provides: a. His DA Forms 67-9, (Officer Evaluation Report) OER and DA Form 67-10-2 (Field Grade Officer Evaluation Report) a total of 18 OER’s from second lieutenant (2LT) to major (MAJ) which reflected in Part V the rater placed an “X” on the Outstanding Performance, Must Promote block and in Part VII the senior rater marked the “Best Qualified“ block and on Part B (see attached OER’s 30 June 2001 to 15 October 2017 enclosed in packet). b. DA Forms 1059s, show on 16 May 2006, he completed the PAO Officer Qualification Course (15 March to 17 May 2006); on 28 April 2008, he completed the Combined Logistics Captains Career Course (27 December 2007 to 2 May 2008); and 26 April 2012, he completed the Intermediate Level Education Course (4 October 2010 to 18 April 2012) c. Memorandum from the Joint Staff, dated 7 June 2010, approved his HSM for Operation Pacific Wave for participating in the humanitarian relief assistance provided to the Territory of American Samoa d. His DA Form 4980, dated 10 March 2014, issued for meritorious service while assigned as the Chief PAO providing the commander with the necessary tools and capacity to tell and portray the successful story of how the command provided efficient sustainment operations within the joint security area. e. His DA Form 4980, dated 24 July 2014, for exceptionally meritorious service for performing multiple roles with the highest level of professionalism as Chief PAO. f. Certificate dated 13 August 2015, authorizing to wear the Army Staff Identification Badge. g. DA Form 4980, dated 27 October 2017 for exceptionally meritorious service serving as the Reserve Marketing Manager in the Office of the Assistant Secretary of the Army Manpower and Reserve Affairs for the period of 18 August 2014 to 6 November 2017. 4. Review of the applicant’s service record shows: a. Having had prior enlisted service, the applicant executed his oath of office (DA Form 71) on 28 December 2000 and was appointed as a Reserve commissioned officer of the Army in the grade of second lieutenant. b. He entered active duty on 2 January 1998. He served in Afghanistan from 3 October 2001 to 1 April 2002 and Iraq from 6 May 2003 to 27 February 2004. He was honorably released from active duty on 27 December 2004. His DD Form 214 for this period of service shows he completed 6 years, 11 months and 26 days of active service; c. He again entered active duty on 1 March 2005. He served in Cuba from 21 March 2005 to 27 March 2006. He was honorably released from active duty on 26 May 2006. His DD Form 214 shows he completed 1 year, 2 months and 26 days of active service this period. d. His DA Form 4037-E (Officer Record Brief) shows section III (Service Data) his promotions: first lieutenant on 28 August 2002; captain on 1 May 2004; and major on 26 June 2009. e. His annual OER, DA Form 67-9, previous to the GOMOR incident for the period of 18 January 2010 to 17 January 2011 shows he was rated for his duties as a Public Affairs Officer while assigned to the Headquarters and Headquarters Company, 143rd Expeditionary Sustainment Command at Orlando FL. His rater COL X__, Chief of Staff rated him as “Outstanding Performance Must Promote” and his senior rater COL X__ commander rated him as “Best Qualified, Above Center Mass”. f. On 12 January 2012, he was reprimanded by the Commanding General, 377th Sustainment Command for driving while intoxicated. The GOMOR states: (1) He was reprimanded for his Driving While Intoxicated conviction in America Samoa on January 31, 2010; for fleeing the scene of an accident; for not consenting to a breathalyzer at the request of police; for damaging both a government and civilian vehicle; and for failure to report his conviction to the 143rd Sustainment Command (Expeditionary). His decision to drive while intoxicated and then to drive resulting in damage to a GSA and civilian vehicle breached the special trust and confidence accorded to him as a commissioned officer. Furthermore, by failing to account for his conduct to both an Army investigator and the 143rd Command, was an attempt to hide this accident. These actions call into question his judgment and suitability to be a leader of soldiers. His conduct was inexcusable under any circumstances and is a tarnish to the reputation of the Army Reserve, the Officer Corps, his unit, and himself. (2) This reprimand is imposed as an administrative measure and not as non-judicial punishment under Article 15, Uniform Code of Military Justice. The imposing officer may permanently file this memorandum in his OMPF or in his unit Military Personnel File for up to 3 years or until his reassignment to another general court-martial jurisdiction, whichever comes first; or he may not file it at all. He intended to file this reprimand in the applicant’s OMPF unless he submitted statements or documents that provide a valid excuse for his conduct, or matters in extenuation and mitigation that convince him that such filing is not warranted. g. His chain of command recommended that his GOMOR be issued and placed on his OMPF based on the serious nature of his behavior as a field grade officer. h. On 22 February 2011, the applicant submitted a letter of consideration to the GOMOR imposing authority. In the statement he stated his feeling of regret. He accepted full responsibility for his actions and did not attempt to explain away the circumstances leading to the incident on 31 January 2010. He highlighted his career and various deployments and that his service to our nation has never faltered. He blamed the fast pace OPTEMPO caught up with him and he developed habits not conducive with leading Soldiers. He sought professional help through Army One Source for drinking too much. He believed, he added value to his current position and to his personal life since his return from American Samoa. He asked to be considered on his performance to date. i. The imposing general officer considered the circumstances surrounding this reprimand and ordered the GOMOR be permanently filed in the applicant’s OMPF j. His OER following receipt of the GOMOR which reflected in Part V the rater placed an “X” on the “Outstanding Performance, Promote” block and in Part VII the senior rater marked the “Best Qualified” block for the period covered 17 January 2012 thru 18 September 2012. k. On 15 February 2013, he received a corrected DD Form 215 (Correction of DD Form 214) changing DD Form 214 issued on 27 December 2004: * Item 12a (Date Entered Active Duty this Period) – 28 December 2000 * Item 12c (Net Active Service this Period) – 4 years * Item 12d (Total Prior Active Service) – 2 years, 11 months and 26 days * Item 12e (Total Prior Inactive Service) – 4 years, 9 months, 28 days l The applicant appealed the Department of the Army Suitability Evaluation Board (DASEB) on 4 December 2014, the DASEB determined that the evidence submitted was sufficient to warrant partial relief. The DASEB directed the GOMOR be transferred from the performance to the restricted portion of the appellant’s Army Military Human Resource Record (AMHRR). This action was not to be considered retroactive and therefore did not constitute grounds for promotion reconsideration, if previously not selected. The board also determined that his record of proceedings and allied documents be filed in the restricted portion of the appellant’s AMHRR. m. On 5 February 2015, after careful consideration of the facts and evidence the Deputy Assistant Secretary of the Army rejected the Board’s decision to transfer the GOMOR and retain it in the performance section of the AMHRR. It was her judgment that the appellant’s behavior violated Army regulations, policies, and protocols and that the applicant had not shown that transfer of the GOMOR would be in the best interest of the Army. n. The applicant petitioned the Army Board for Correction of Military Records (ABCMR). On 9 June 2015 the ABCMR determined the evidence provided did not demonstrate the existence of a probable error or injustice therefore, the Board denied the request. o. His orders R-0-704560 issued on 6 September 2017, show he was reassigned to the Office of the Chief of Army Reserve effective 6 November 2017. 5. By regulation, a. Once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct, and to have been filed pursuant to an objective decision by a competent authority. The recipient has the burden of proof to show, by clear and convincing evidence, to support assertion that the document is either untrue or unjust, in whole or in part. b. An officer who directed the filing in the AMHRR of an administrative memorandum of reprimand, admonition, or censure may request its revision, alteration, or removal, if later investigation determines it was untrue or unjust, in whole or in part. The basis for such determination must be provided the (DASEB) in sufficient detail so as to justify the request. The officer who directed the filing of such a letter in the AMHRR may not initiate an appeal on the basis that the memorandum has served its intended purpose. However, a memorandum of support may be submitted with the recipient's appeal. c. By regulation, 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. d. As for the removal of his civil conviction, as the name indicates, this is a civil issue, not a military record, and this is not within the purview of this Board. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that they could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined that partial relief was warranted. Based upon the misconduct which led to the applicant’s GOMOR, the passage of time, as well as the guidance on providing clemency, the Board recommended that the GOMOR be transferred to the applicant’s restricted fiche. However, the Board concluded the request to have his civil conviction removed was outside the authority of the board. Since the conviction was with civilian authorities, this is a civil issue, not a military record, and this is not within the purview of this Board. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 issued to the applicant on 12 January 2012, to the restricted fiche of the applicant. 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 removing his civil conviction. 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. REFERENCES: 1. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 2. Army Regulation (AR) 600-37 (Unfavorable Information) sets forth the policies and procedures whereby a person may seek removal of unfavorable information from his or her AMHRR, or transfer of unfavorable information from the performance files to the restricted file of his or her AMHRR. The objectives of this regulation are to prevent adverse personnel actions based on unsubstantiated, derogatory information, irrelevant, or untimely, or mistaken identity. To provide a means of correcting injustices if they occur, and to ensure that Soldiers of poor moral character are not continued in the Army. This regulation also ensures the best interest of both the Army and Soldiers are served. a. Chapter 3-5b states a memorandum, regardless of the issuing authority, may be filed in the Army Military Human Resource Record (AMHRR), and managed by Human Resource Command. The General Officer directing filing must exercise General Court-Martial Convening Authority (GCMCA) over the recipient, be the designee or delegate of the individual exercising GCMCA over the recipient, been a filing authority from the recipient’s losing command, or be the chief of any designated special branch acting pursuant to their statutory authority. Memoranda filed in the AMHRR will be filed in the performance folder. b. Chapter 7 states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct, and to have been filed pursuant to an objective decision by a competent authority. The recipient has the burden of proof to show, by clear and convincing evidence, to support assertion that the document is either untrue or unjust, in whole or in part. Evidence submitted in support of the appeal may include, but is not limited to: an official investigation showing the initial investigation was untrue or unjust; decisions made by an authority above the imposing authority overturning the basis for the adverse documents; notarized witness statements; historical records; official documents; and/or legal opinions. The Deputy Assistant Secretary of the Army (Review Boards) is the final decision authority for removal of unfavorable information from the AMHRR. This authority will not be further delegated. 3. Army Regulation 600-8-104 (Army Military Human Resources Records Management (AMHRR)), DASEB document deny/approved request for removal of adverse information will be in the “Performance” folder only if denied or partially denied. If DASEB approves the request and directs the transfer of the adverse action to the “Restricted” folder, the document directing this action will be filed in the “Restricted” folder along with the adverse action. File allied documents related to denied requests in the “Restricted” folder. If the DASEB approves a request and directs removal from the AMHRR, do not file the document directing the removal. File allied papers relating to approval requests only if directed by the DASEB. ABCMR Record of Proceedings (cont) AR20170019550 8 1