IN THE CASE OF: BOARD DATE: 14 February 2022 DOCKET NUMBER: AR20210008499 APPLICANT REQUESTS: a. removal of the general officer memorandum of reprimand (GOMOR), 19 February 2013, and allied documents from his Army Military Human Resource Record (AMHRR); b. removal of the titling action, to include the law enforcement report (LER), from his AMHRR; c. promotion to an unspecified rank/grade with associated back pay and benefits; d. award of the Army Good Conduct Medal (AGCM); and e. a personal appearance hearing before the Board. 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) * Department of the Army Suitability Evaluation Board (DASEB) Application Package (34 pages), 25 May 2020 FACTS: 1. The applicant states his titling action contains material errors and the GOMOR contains procedural and substantive errors. He requests removal of the titling action and GOMOR, including allied documents, from his AMHRR. 2. The applicant requests removal of a titling action, to include an LER, from his AMHRR. A review of his records revealed no LER or evidence of a titling action, nor does he provide any evidence of such. If a titling action exists, as well as an LER, he has not exhausted his administrative remedies by first appealing to the Director, U.S. Army Crime Records Center, Quantico, VA, to amend a record. As a result, this portion of his request will not be discussed further in this record of proceedings. 3. He enlisted in the Regular Army on 21 June 2007. Upon completion of initial entry training, he was awarded military occupational specialty 36B (Financial Management Technician). He was promoted to the rank/grade of sergeant/E-5 effective 1 January 2013. 4. The applicant was reprimanded in writing by Major General Commanding General, U.S. Army Africa/Southern European Task Force, on 19 February 2013, wherein he stated: On 19 January 2013, you were stopped by the military police while approaching the main entrance gate for a 100% identification card (ID) check. While stopped, the officer conducting the ID check noticed a strong odor of alcohol emanating from your breath and person. You were then transported to the Military Police Station where your field sobriety test showed signs of impairment and a breathalyzer using the Lion Alcolmeter 500 resulted in a BAC [blood alcohol content] of 0.197%. In accordance with Army Regulation 27-10 [Military Justice], paragraph 3-3b and Army Regulation 190-5 [Motor Vehicle Traffic Supervision], paragraph 2-7a(3), you are hereby reprimanded. As a Noncommissioned Officer you have a duty to act responsibly in every situation, to do what is right, and to set a positive example for subordinates. You have completely failed in these responsibilities and discredited yourself and the United States Army. I seriously question your judgment and potential for further military service. Your actions have embarrassed and disappointed your chain of command. This is an administrative reprimand imposed under the provisions of AR [Army Regulation] 600-37 [Unfavorable Information] and not as punishment under the Uniform Code of Military Justice. You are advised that in accordance with AR 600-37, Paragraph 3-4b, I am considering whether to direct this reprimand be filed permanently in your Official Military Personnel File. Prior to making my filing decision, I will consider any matters you present to me. You will be provided, by separate cover, a copy of the evidence which forms the basis for this reprimand. You will immediately acknowledge receipt of this reprimand in writing. You may forward any matters you wish me to consider in extenuation, mitigation, or rebuttal through your chain of command within seven calendar days. I will consider any matter you submit before I decide how this reprimand should be filed. 5. The applicant acknowledged receipt of the GOMOR on 20 February 2013 and indicated his intent to submit written matters in rebuttal. 6. On 25 February 2013, he submitted rebuttal matters, requesting consideration of mitigating facts and requesting filing the GOMOR locally in lieu of filing it in his AMHRR. He admitted to embarrassing the chain of command and took full responsibility for his actions. He stated he has taken remedial action by attending an Army Substance Abuse Program assessment on 23 January 2013 and successfully completing the Prime for Life Substance Abuse Awareness Training on 12-13 February 2013. He submitted numerous character-reference letters in support of his requests. 7. After carefully considering the matters submitted in rebuttal, Major General directed filing the GOMOR in the applicant's AMHRR on 21 March 2013. 8. The memorandum from the Commander, Detachment C, 106th Financial Management Support Unit, Vicenza, Italy, (Disqualification for Army Good Conduct Medal), 1 June 2013, disqualified the applicant for award of the Army Good Conduct Medal for the period 21 June 2010 through 20 June 2013. In a separate memorandum, 1 July 2013, the applicant acknowledged receipt of the memorandum and the reason for disqualification due to infractions of the Army Values per counseling statements. He elected not to make a statement in his behalf. 9. He was promoted to the rank/grade of staff sergeant/E-6 effective 1 July 2016. 10. He petitioned the DASEB for removal of the GOMOR from his AMHRR or, in the alternative, transfer of the GOMOR to the restricted folder of his AMHRR. In his petition to the DASEB, he provided the DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 19 January 2013, showing an adverse action flag was initiated for alcohol abuse effective 19 January 2013. 11. On 30 June 2020 in Docket Number AR20200006069, the DASEB by unanimous vote determined the overall merits of the case did not warrant removal of the GOMOR. However, also by unanimous vote, the board determined the evidence present was sufficient to warrant partial relief. As a result, the DASEB directed the following: a. transfer of the GOMOR, 19 February 2013, to the restricted folder of the applicant's AMHRR; b. the action is not retroactive and, therefore, does not constitute grounds for promotion reconsideration, if previously non-selected; and c. filing the decision memorandum and allied documents in the restricted folder of the applicant's AMHRR. 12. A review of the applicant's AMHRR revealed the GOMOR, 19 February 2013, with allied documents is filed in the restricted folder of his AMHRR.? 13. He was promoted to the rank/grade of sergeant first class/E-7 effective 1 October 2021. 14. He is currently serving in the rank of sergeant first class assigned to Headquarters and Headquarters Company, 3d Combat Aviation Brigade, 3d Infantry Division, Hunter Army Airfield, GA. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the applicant's military records, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record, and regulatory guidance. The Board noted that the GOMAR had been transferred to the restricted folder of his AMHRR; however, documentation is absence any new or compelling evidence that the GOMOR was untrue or injustice. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief for that portion of the applicant’s request. 3. The Board further determined that the evidence presented insufficient to warrant relief for that portion of the Army Good Conduct Medal. 4. Prior to closing the case the Board noted that the applicant had been promoted to the rank of sergeant first class and; therefore, took no action on that portion of the request. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 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 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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 190-5 establishes policy, responsibilities, and procedures for motor vehicle traffic supervision on military installations in the continental United States and overseas areas. Paragraph 2-7 (Army Administrative Actions against Intoxicated Drivers) states Army commanders will take appropriate action against intoxicated drivers. These actions may include the following: a. A written reprimand, administrative in nature, will be issued to active duty Soldiers in the cases described below. Any general officer, and any officer frocked to the grade of brigadier general, may issue this reprimand. Filing of the reprimand will be in accordance with the provisions of Army Regulation 600-37. (1) conviction by courts-martial or civilian court or imposition of nonjudicial punishment for an offense of drunk or impaired driving either on or off the installation; (2) refusal to take or failure to complete a lawfully requested test to measure alcohol or drug content of the blood, breath, or urine, either on or off the installation, when there is reasonable belief of driving under the influence of alcohol or drugs; (3) driving or being in physical control of a motor vehicle on post when the BAC is 0.08 percent or higher, irrespective of other charges, or off post when the BAC is in violation of the law of the State involved; or (4) driving, or being in physical control of a motor vehicle, either on or off the installation, when lawfully conducted chemical tests reflect the presence of illegal drugs. b. Review by the commander of the service records of active duty Soldiers apprehended for offenses described in paragraph a, above, to determine if any of the following actions should be taken: (1) administrative reduction in rank/grade per Army Regulation 600-8-19 (Enlisted Promotions and Reductions),? (2) bar to reenlistment per Army Regulation 601-280 (Army Retention Program), or (3) administrative separation per Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). 3. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities for the preparation, reporting, use, retention, and disposition of Department of the Army forms and documents related to law enforcement activities. It implements Federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. a. Paragraph 3-6a (Amendment of Records) states an amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that actually occurred. Requests to amend reports will be ause to believe that the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether or not subsequent judicial, nonjudicial or administrative action is taken against the individual. b. Paragraph 4-7 (DA Form 4833 (Commander's Report of Disciplinary or Administrative Action)) states this form is used with the LER to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. The AMHRR includes, but is not limited to the Official Military Personnel File (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. 5. 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. 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. b. 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 (Appeals). c. Paragraph 7-2 (Policies and Standards) states 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. d. Paragraph 7-3(c) states 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 evidence or information indicates the basis for the adverse action was untrue or unjust, in whole or in part. An officer who directed such a filing must provide the DASEB a copy of the new evidence or information to justify the request. 6. Department of Defense (DOD) Instruction 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD) establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by the DOD. 7. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. The AGCM is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service. It is awarded on a selective basis to each Soldier who distinguishes himself or herself from among his or her fellow Soldiers by exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military service. There is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders. Throughout a qualifying period, each enlisted Soldier must meet all the following criteria for an award: a. The immediate commander evaluates the Soldier's character as above reproach. b. The record of service indicates that the Soldier has: (1) willingly complied with the demands of the military environment, (2) been loyal and obedient to his or her superiors, (3) faithfully supported the goals of his or her organization and the Army, and (4) conducted himself or herself in an exemplary manner as to distinguish him or her from fellow Soldiers. c. While any record of nonjudicial punishment or unfavorable action could be in conflict with recognizing the Soldier's service as exemplary, such record should not be viewed as automatically disqualifying. The commander will analyze the record, giving consideration to the nature of the infraction, the circumstances under which it occurred and when. d. Suspension of favorable personnel action does not automatically terminate the eligibility period. The reason for suspension must be considered by the unit commander (for example an adverse action flag may disqualify the eligibility period whereas, a flag for weight control program that results in a Soldier achieving Army standards typically does not result in disqualification). The approving commander must consider the totality of the Soldier’s performance. e. In terms of job performance, the Soldier's efficiency must be evaluated and must meet all requirements and expectations for that Soldier's grade, military occupational specialty, and experience. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008499 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1