IN THE CASE OF: BOARD DATE: 2 February 2021 DOCKET NUMBER: AR20200007933 APPLICANT REQUESTS: * removal of the general officer memorandum of reprimand (GOMOR), 22 September 2017, from his Army Military Human Resource Record (AMHRR) * as an alternative, transfer of the GOMOR to 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) * Applicant's Letter, 24 March 2020 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 September 2018 (Member Copy Number 4) * U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison Command, Fort Knox, Orders 089-0166, 30 March 2018 * Headquarters, U.S. Army Recruiting Command (USAREC), Memorandum (GOMOR), 22 September 2017 * Headquarters, USAREC, Memorandum (Notification of Intent to Permanently Remove from Positions of Significant Trust and Authority (POSTA) Due to Disqualification), 22 September 2017 * U.S. Army Recruiting Company Orlando Memorandum (Acknowledgement of Receipt of Reprimand), 29 September 2017 * Applicant's Memorandum (Acknowledgement of Intent to Permanently Remove from POSTA Due to Disqualification), 29 September 2017 * Headquarters, USAREC, Memorandum (Filing Determination on Reprimand), 27 October 2017, with chain of command recommendations * Headquarters, USAREC, Memorandum (Notification of Removal from POSTA), 1 December 2017 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 4 December 2017 ? 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 he does not dispute the GOMOR is administratively correct, nor does he dispute that the proper procedures were followed. His request is based on the fact that the GOMOR has served its intended purpose. He believes the GOMOR corrected the deficiencies for which he was reprimanded. The subsequent removal from POSTA, which was required for his last military occupational specialty (MOS), also made him ineligible for continued service. He had 19 years in service at the time and was forced to voluntarily retire in lieu of administrative separation. He believes the GOMOR no longer warrants remaining in his AMHRR. 3. The applicant enlisted in the Regular Army on 5 August 1998. 4. While serving in the rank of sergeant first class as a recruiter (MOS 79R) with the U.S. Army Recruiting Battalion Tampa, the applicant received a GOMOR, 22 September 2017, from the Commanding General, USAREC, stating: Between on or about 18 February 2017 and March 2017, you violated USAREC Regulation 27-4, paragraphs 2-1a and 2-1d by using your personal phone and Snapchat to send inappropriate text messages that were of a personal and unofficial nature to Ms. D., the subject of recruiting efforts. Between on or about 8 August 2016 and 19 August 2016, you engaged in a pattern of inappropriate behavior with Ms. R., a 17 year old [sic] high school student and the subject of recruiting efforts, which made her uncomfortable and created a hostile environment for her. You violated USAREC Regulation 27-4, paragraph 2-1d by sending inappropriate text messages that were of a personal and unofficial nature. Additionally, you showed a movie entitled "Zack and Miri Make a Porno" to a group of Future Soldiers on their way to MEPs [Military Entrance Processing Station]. a. The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice. b. The memorandum also noted the applicant would be provided a redacted copy of the evidence which formed the basis of the reprimand. This evidence is not available for review. 5. In conjunction with the GOMOR, the USAREC Commander notified the applicant of his intent to permanently remove him from POSTA on 22 September 2017. The USAREC Commander noted: a. The basis for this determination was credible evidence of fraternization of a sexual nature, which constitutes Type I disqualifying information under Execute Order 193-14, which may preclude suitability to serve in POSTA. b. He had the right to consult with military counsel provided by the Government and/or civilian counsel at no expense to the Government. He was advised to contact the Legal Assistance Office at his nearest Army installation for assignment of military counsel. c. In accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 3-6, he was given the opportunity to review the attached documents relating to the disqualification action. He could submit a rebuttal to refute the accuracy of the information if he believed the derogatory information was erroneous. He could also request a waiver if he was disqualified due to a Type II offense. Career recruiters may request a waiver of a Type I offense if no adverse action was taken. Detailed recruiters are not eligible for a waiver of a Type I offense. If he was not eligible for a waiver, he could still request an exception to policy from the Secretary of the Army. d. He was informed the imposing authority would provide U.S. Army Training and Doctrine Command with a recommendation regarding his removal from POSTA after reviewing and considering any statements or matters submitted in response to the proposed action. For career recruiters, removal may also result in separation from the Army in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). 6. The applicant acknowledged he read and understood the reprimand and elected not to submit a statement to the imposing authority on 29 September 2017. He also acknowledged he read and understood the unfavorable information against him and his rights. He elected to waive consultation of military and/or civilian counsel and also elected not to submit a statement on his own behalf regarding his removal from POSTA to the imposing authority on 29 September 2017. 7. After carefully considering the circumstances and the recommendations of his subordinate commanders, the USAREC Commander directed filing the GOMOR in the appellant’s AMHRR on 27 October 2017. A review of the applicant's AMHRR revealed the GOMOR is filed in the performance folder. 8. After carefully reviewing his file and concerning the credible evidence of fraternization of a sexual nature, the USAREC Commander notified the applicant that he directed his removal from POSTA effective 1 December 2017. 9. The DA Form 268, 4 December 2017, shows his adverse action flag was removed due to a final unfavorable report effective 1 December 2017. 10. His records show he submitted an application for voluntary retirement on 6 March 2018 with a requested retirement date of 1 October 2018. His request was approved by the U.S. Army Human Resources Command on 27 March 2018 for his requested retirement date. 11. He retired on 30 September 2018. He completed 20 years, 1 month, and 26 days of net active service. His DD Form 214 shows his rank as sergeant first class. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 2. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his position of trust, the nature of his misconduct, an adverse action flag, the content and filing of the GOMOR and the applicant’s request for voluntary retirement. The Board did not find evidence to show that the GOMOR was untrue or unjust or that the applicant was denied due process. The Board found insufficient evidence that he GOMOR had served its purpose. Based on a preponderance of evidence, the Board determined that the filing of the applicant’s GOMOR was not in error or unjust ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. 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 regulation provides that 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 600-37 (Unfavorable Information), 10 April 2018, 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. Unfavorable information will not be filed in the AMHRR unless the recipient has been given the opportunity to review the documentation that serves as the basis for the proposed filing and a reasonable amount of time to make a written statement in response. b. Unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These traits must be identified early and shown in permanent official personnel records that are available to personnel managers and selection board members for use in making decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. c. Once an official document is properly filed in the AMHRR, it is presumed to be administratively correct and 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 AMHRR. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. d. Transfer those administrative memoranda of reprimand, admonition, or censure that are determined upon appeal to have served their intended purpose from the performance to the restricted folder of the AMHRR, when such transfer would be in the best interest of the Army. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management), 7 April 2014, prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. 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) AR20200007933 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1