IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210005167 APPLICANT REQUESTS: * removal of the general officer memorandum of reprimand (GOMOR), 7 March 2005, from the restricted folder of his Army Military Human Resource Record (AMHRR) * removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), 9 April 2009, from the restricted folder of his AMHRR APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum (Request for Removal of Article 15 and GOMOR of (Applicant)), 28 October 2019, with enclosures – * Enclosure 1 – Department of the Army Suitability Evaluation Board (DASEB) Decision * Enclosure 2 – five Letters of Recommendation to the DASEB, 8 August 2018 through 11 November 2018 * Enclosure 3 – nine DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 1 October 2007 through 10 January 2015 * five DA Forms 2166-9 (NCOER (SSG-1SG/MSG)) covering the period 11 January 2015 through 8 August 2019 * Enclosure 4 – DA Form 4037 (Enlisted Record Brief), 23 June 2020 * Enclosure 5 – four DA Forms 1059 (Service School Academic Evaluation Report (AER)) covering the period 29 March 2008 through 13 December 2014 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states this request is made under the provisions of Army Regulation 15-185 (Army Board for Correction of Military Records) and is made because the inclusion of both the nonjudicial punishment (DA Form 2627) and the GOMOR in his AMHRR, even in the restricted folder, is unjust. a. He previously petitioned the DASEB to remove the DA Form 2627 and the GOMOR. The DASEB denied his request to remove the documents from his AMHRR but alternatively granted his request to transfer the documents to the restricted folder of his AMHRR. b. The ABCMR is justified in removing the GOMOR because it has been over 14 years since he received the GOMOR and the reason for which he received the GOMOR occurred within the first year of his military service. He feels the GOMOR remaining in his AMHRR is unjust because he was not allowed proper due process. His battalion commander at the time had assumption of command orders and made the recommendation for official filing on behalf of two commanders, himself and the absent brigade commander. c. He has fully learned from his mistake and is fully confident the GOMOR has served its purpose. d. His nonjudicial punishment (DA Form 2627) resulted from his deception while completing a company commander's Top Secret Clearance Screening Interview Questionnaire. At the time, he did not want his new chain of command to think less of him, so he answered questions regarding drug and alcohol dishonestly. He has always owned up to his mistakes; however, he has always been embarrassed by them as well. He was looking for a fresh start and thought it would be a good idea not to divulge his previous infractions. He now knows that it was a terrible mistake and failure on his behalf. After receiving his nonjudicial punishment, he was still granted a Top Secret clearance and has supported several Top Secret missions throughout his military career. e. He enclosed letters of recommendation supporting his request to remove the DA Form 2627, which he also submitted with his request to the DASEB. One of the letters of recommendation is from the company commander who imposed the nonjudicial punishment. f. His performance during the last 15 years has been diverse and exceptional. He received numerous awards and deployed five times. He enclosed his NCOERs, AERs, and Enlisted Record Brief to show his exceptional service. His performance demonstrates that he has shown great resiliency and it is in the best interest of the Army to remove the GOMOR and DA Form 2627 from his AMHRR. Removal of these items will enable him to serve in and contribute to the U.S. Army in positions of greater responsibility and trust. 3. He enlisted in the Regular Army on 15 July 2004. 4. On 7 March 2005, the Commanding General, Quartermaster Center and School, reprimanded him in writing for driving under the influence of alcohol, stating: a. On 6 March 2005, the applicant was stopped by a military police officer when he attempted to gain access to Fort Lee. The military police officer detected a strong odor of alcohol on the applicant's breath and administered three field sobriety tests, which the applicant failed. The applicant was apprehended and administered the Intoxilyzer 5000 breathalyzer test, which showed a .13-percent blood alcohol content. b. This is an administrative action and not punishment under the UCMJ. 5. The memorandum (Administrative Reprimand Acknowledgment of Receipt), 10 March 2005, shows the applicant elected not to submit a statement or document in his behalf. 6. The Headquarters, 49th Quartermaster Group memorandum (Assumption of Command), 14 March 2005, states Lieutenant Colonel assumed command of the 49th Quartermaster Group effective 13 March 2005 to 20 March 2005. 7. The 267th Quartermaster Company memorandum (GOMOR (Applicant)), 15 March 2005, shows the applicant's company commander recommended filing the GOMOR in the applicant's local unit file. 8. The 240th Quartermaster Battalion memorandum (GOMOR (Applicant)), 15 March 2005, shows the applicant's battalion commander recommended filing the GOMOR in the applicant's Official Military Personnel File (OMPF). 9. The 49th Quartermaster Group memorandum (GOMOR (Applicant), 15 March 2005, shows the acting commander (Lieutenant Colonel recommended filing the GOMOR in the applicant's OMPF. 10. On 15 March 2005, the Commanding General, Quartermaster Center and School, having reviewed all available information, directed filing the GOMOR in the applicant's OMPF. 11. He received nonjudicial punishment under the provisions of Article 15, UCMJ, on 9 April 2009 for signing an official document with intent to deceive, to wit: Top Secret Clearance Screening Interview Questionnaire, which questionnaire was false in that he stated he had never used or experimented with drugs, which was then known by him to be false. His punishment consisted of forfeiture of $544 per month for 1 month and extra duty and restriction for 14 days. He elected not to appeal the punishment. His company commander directed filing the original DA Form 2627 in the performance folder of his OMPF. 12. The applicant's four AERs covering the period 29 March 2008 through 13 December 2014 show his successful completion of leadership courses and receipt of "Superior" ratings in several demonstrated abilities categories. 13. His five letters of recommendation to the DASEB, 20 August 2018 through 11 November 2018, strongly supported his request to either remove the DA Form 2627 and GOMOR from his AMHRR or transfer the documents to the restricted folder of his AMHRR. The letters attest to his superior leadership and mentorship qualities, performance, and going above and beyond the call of duty to set himself apart from his peers, and stated he has learned from his unfortunate mistakes. His former company commander who imposed the nonjudicial punishment on 9 April 2009 stated: a. He gave the applicant the nonjudicial punishment 10 years ago after a minor lapse in judgment on the applicant's part. Since then the applicant has continued to work hard and excel while giving his all to the Army in multitude of challenging operational environments. The applicant has all the characteristics of an Army professional. b. It is evident that the applicant has learned from his mistakes and that the nonjudicial punishment has served its rehabilitative purpose. The applicant's progression through the ranks and appointments to serve in positions of increased responsibility are prime examples of the amount of trust the Army and the applicant's chain of command has in him to superbly perform his duties. 14. On 9 May 2019, the DASEB determined the evidence was sufficient to warrant partial relief. The board denied the applicant's request to remove the DA Form 2627 and GOMOR from his AMHRR; however, the board granted the applicant's alternate request to move the DA Form 2627 and GOMOR to the restricted folder of his AMHRR. The board determined the applicant met the conditions to request transfer of the DA Form 2627 and GOMOR in accordance with Army Regulation 600-37 (Unfavorable Information) because 1 year had elapsed and the applicant had received one non-AER. All of the applicant's NCOERs were successful; he attended and successfully completed several military schools; he has been awarded numerous awards; and his current leadership, previous leadership, as well as the issuing authority support his appeal. 15. The applicant's 14 NCOERs covering the period 1 October 2007 through 8 August 2019 show his excellent duty performance as an NCO and contain exceptional comments from his raters and senior raters. 16. His Enlisted Record Brief, 23 June 2020, shows: * five deployments – Pakistan, Qatar, Afghanistan, and Iraq (twice) * individual decorations and foreign service campaigns – * Joint Service Commendation Medal * Army Commendation Medal (4th Award) * Joint Service Achievement Medal * Army Achievement Medal (6th Award) * Army Good Conduct Medal with five bronze loops * Afghanistan Campaign Medal with one bronze service star * Iraq Campaign Medal with two bronze service stars 17. U.S. Army Human Resources Command Orders 265-41, 21 September 2020, promoted him to the rank/grade of sergeant first class (SFC)/E-7 effective 1 October 2020. 18. His NCOER covering the period 9 August 2019 through 8 October 2019 shows his senior rater rated his overall potential as "Highly Qualified" and commented, in part: "[Applicant] is easily in the top 5% of NCOs I have work[ed] with in 6 years of service... "Superior potential; promoted to SFC during this rating period...Future first sergeant or Detachment Sergeant potential." 19. On 9 October 2020, he was awarded the Defense Meritorious Service Medal for exceptionally meritorious service. 20. On 26 October 2020, he was awarded a second Joint Service Commendation Medal for meritorious service. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered applicant’s contentions, military record, and regulatory guidance. The Board considered the applicant’s overall service record, number of deployments, awards and recognitions and the most recent NCOER available for review. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 following from the restricted folder of his Army Military Human Resource Record (AMHRR) * general officer memorandum of reprimand (GOMOR), 7 March 2005 * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), 9 April 2000 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. 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 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 27-10 (Military Justice), prescribes the policies and procedures pertaining to the administration of military justice and implemented the Manual for Courts-Martial. Chapter 3 (Nonjudicial Punishment) implements and amplifies Article 15 of the UCMJ and part V of the Manual for Courts-Martial. a. Paragraph 3-4 (Personal Exercise of Discretion) states a commander will personally exercise discretion in the nonjudicial punishment process by: (1) evaluating the case to determine whether proceedings under Article 15 should be initiated; (2) determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and (3) determining the amount and nature of any punishment, if punishment is appropriate. b. Paragraph 3-28 (Setting Aside and Restoration) states setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. Nonjudicial punishment is "wholly set aside" when the commander who imposed the punishment, a successor-in- command, or a superior authority sets aside all punishment imposed upon an individual pursuant to Article 15, UCMJ. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the Article 15, UCMJ, itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, imposition of the Article 15, UCMJ, or punishment has resulted in a clear injustice. "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. c. Paragraph 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) covers policies and procedures for enlisted Soldiers (sergeant and above) and commissioned officers to petition the DASEB for transfer of records of nonjudicial punishment from the performance to the restricted folder of the AMHRR. To support the request, the person must submit substantive evidence that the intended purpose of Article 15, UCMJ, has been served and that the transfer of the record is in the best interest of the Army. d. Table 3-2 (Removal of Records of Nonjudicial Punishment from Military Personnel Files), Rule 1, states that if the commander who imposed the punishment, successor in command, or superior authority wholly sets aside the punishment on the basis that evidence exists which demonstrates the punishment resulted in a "clear injustice," then the record of nonjudicial punishment is removed from the Soldier's record. 4. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. Paragraph 6-3 (Department of the Army Suitability Evaluation Board (DASEB) Process) states Soldiers who believe that unfavorable information filed in their AMHRR, in the form of a memorandum of reprimand, admonition, or censure, or records or proceeding pursuant to Article 15, UCMJ, have served their intended purpose, may submit an appeal to request its transfer to the restricted folder of the AMHRR in accordance with paragraph 7-2d(3). Such appeals must include evidence that: (1) The intended purpose has been served. (2) The Soldier has received at least one evaluation report since its imposition. (3) The transfer is in the best interest of the Army. (4) The Soldier's chain of command at the time of the imposition and/or imposing authority support the transfer in the form of a memorandum. b. Chapter 7 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 folder to the restricted folder of his or her AMHRR. (1) Paragraph 7-1 (Appeal Authority) provides that the DASEB is the initial appeal authority and makes recommendations for removal, alteration, or transfer of unfavorable information entered in the AMHRR. (2) Paragraph 7-2 (Policies and Standards) states an officer who directed filing of an administrative memorandum of reprimand, admonition, or censure in the AMHRR may request its revision, alteration, or removal if later investigation determines such information is untrue or unjust, in whole or in part. The basis for such determination must be provided to 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. (a) Appeals for Removal. This regulation applies to appeals for removal of memorandums of reprimand, admonition, or censure already filed in the recipient's AMHRR. (b) Appeals for Transfer. This regulation applies to appeals for transfer of memorandums of reprimand, admonition, or censure; and for transfer of records of proceedings under Article 15 of the UCMJ from the performance folder to the restricted folder of the recipient's AMHRR. (c) Appeals Involving Documents with Regulatory Appeal Authority. This regulation does not apply to documents that have their own regulatory appeal authority, such as evaluation reports or records of courts-martial. (d) Appeals for Article 15 Removal. The DASEB will not consider appeals to remove records of proceedings under Article 15, UCMJ, from the AMHRR. The authority to adjudicate such claims rests with the ABCMR. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005167 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1