PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 November 2003
         DOCKET NUMBER: AR2003086180


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Victoria A. Donaldson		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Ronald E. Blakely		Member
Ms. Eliose C. Prendergast		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that the General Officer Memorandum of Reprimand (GOMOR) dated 5 February 1997 and the negative comments on the officer evaluation report (OER) for the period 13 September 1996 through 4 May 1997 [herein referred to as the contested OER] be expunged from his record.

3. Counsel, acting on behalf of the applicant stated in effect, that the "difficulties" were triggered by an exchange between the applicant and the Army colonel in the position of the applicant's senior rater (SR) [hereafter referred to as COL R], immediately after the applicant had finished a highly competitive soccer game.

4. Counsel stated the following:

a. The applicant was a weary athlete who was approached by COL R in an informal setting and that COL R informed the applicant that Army authorities in Hungary wanted to "chat" with him concerning allegations that a fellow captain [hereafter identified as CPT G] had improperly taken his weapon to the staging area (Living Support Area/LSA).

b. That at that moment the applicant did not recall much about the incident and that the applicant stated that fact to COL R. Counsel further stated that later the applicant was able to recall the incident in greater detail and that the applicant then initiated further communication with COL R to provide additional detail.

c. That the simple exchange of words on a soccer field began to take on a life of its own and that based on a 30-second informal communication on a soccer field, the applicant received a letter of reprimand, received a "shabby" OER, turned down his promotion to major and submitted his resignation.

5. In support of this application, the applicant provided a five-page memorandum from his counsel, results of a polygraph test and copies of eight OERs for the period 12 August 1988 through 12 September 1996.

6. The applicant’s military records show that he was commissioned as a Reserve officer in the rank of second lieutenant on 11 May 1984. He entered active duty on 20 December 1985. On 28 March 1985, the applicant executed an oath of office as a captain in the Judge Advocate General's Corps.

7. On 6 February 1997, the applicant was tendered a GOMOR by the Commanding General of the 21st Theater Army Area Command (TAACOM) for "conduct unbecoming an officer and lying." The GOMOR stated that the applicant's false denial of any knowledge related to a matter under official investigation and his deliberate lies during the investigation reflect unacceptable conduct for a soldier especially a commissioned officer.

8. The applicant's service records contain a 21 October 1996 legal review prepared by the V Corp Staff Judge Advocate (SJA). This document provided a review of the investigation conducted under the provisions of AR 15-6 into the allegations against CPT G for improperly storing his weapon. The V Corps SJA essentially stated the following in his legal review:

         a. That there was sufficient legal and factual basis to support the findings and recommendations concerning CPT G, with some minor amendments. In summary, the investigating officer made two recommendations with regard to CPT G:
                  1. The first recommendation was to transfer CPT G back to his home station.

                  2. The second recommendation was to give CPT G a general officer reprimand to be filed at his home station and removed upon his departure.

         b. The investigating officer made an additional finding and recommendation concerning alleged misconduct by the applicant. The reviewer determined that there was sufficient legal and factual basis to support the findings, but the recommendations should not be as strong as the recommendations against CPT G.

         c. The V Corps SJA stated that the findings and recommendations of the investigation may have exceeded the scope of the appointment memorandum because the appointment memorandum was based on erroneous reporting of the facts of the incident. In summary, the original investigation was based on the fact that CPT G had failed to secure his weapon and had taken his weapon into the LSA. When originally interviewed, CPT G implied that he had taken his weapon with him into the LSA. During the investigation, it was discovered that CPT G had actually concealed his weapon in his shared billets and left it unattended when he went to the LSA.

         d. The V Corps SJA noted that Army Regulation 15-6, paragraph 3-9a states that the investigation should "normally" not exceed the scope of the findings indicated by the appointing authority. The V Corps SJA noted that the appointing memorandum limited the investigation findings to questions about CPT G and his alleged transportation of the concealed weapon into the LSA and cited paragraph 3-8 of Army Regulation 15-6 which states that the investigating officer, when confronted with a situation which goes beyond the scope of appointment, should consult with the appointing authority for further instructions. The V Corps SJA speculated that the investigating officer may have relied on paragraph 4 of the appointment memorandum which used the words "and any other relevant matter you discover during your investigation of CPT G's conduct" as an authority to enlarge the investigation.

         e. The V Corps SJA concluded that since CPT G was the source of the original misconception, the regulatory generosity accorded to decisions of the appointing authority and the more general guidance of paragraph 4 of the appointment memorandum, the error, if any, was minor, and did not substantially impair the rights of the respondents.

         f. The investigating officer found that CPT G left his weapon unattended in his room for a 3 1/2 hour period in violation of Army Regulation 190-11 and Army Regulation 735-5. However, the reviewer stated that the fact that CPT G had secured his weapon is clear, whether he properly secured his weapon is the matter in issue. The reviewer continued that the investigation did not provide the clear missing link of policy or regulation which states that a weapon cannot be stored unattended in a locked billets room.

         g. The investigating officer found that the applicant purposefully encouraged CPT G to violate policy by taking his weapon into the LSA and that the applicant's statement was clear that he thought that CPT G had the weapon on his person when he entered the LSA.

         h. The V Corps SJA supported the investigating officer's recommendation that a copy of the investigation be given to the applicant's chain of command with a recommendation that the chain of command consider giving the applicant a general officer reprimand for giving bad advice. The V Corps SJA further emphasized that the applicant should not receive more punishment than CPT G for substantially less involvement. The V Corps SJA continued that the responsibility for the weapon was CPT G's and that CPT G was the only one without dispute that deceived the investigating officer.

         i. Finally, the V Corps SJA stated that the applicant's only involvement was to advise CPT G to carry the weapon, thereby maintaining security but violating LSA policy. He continued that CPT G did not follow that advice and that the weapon was not carried into the LSA tent. He further stated that the applicant's conduct was not blameless but that it was less egregious and less extensive than CPT G's. The V Corps SJA concluded that the applicant's punishment should not be more than that of CPT G.

9. Officials at the 21st TAACOM in Germany prepared a GOMOR to be tendered to the applicant. The GOMOR stated that it was being imposed as an administrative measure and not as a punishment under Article 15, Uniform Code of Military Justice. The Commanding General indicated that he intended to file this reprimand on the applicant's Official Military Personnel File (OMPF). However, the Commanding General also stated that he would withhold his filing determination until after he considered any response or rebuttal that the applicant provided.

10. The GOMOR was referred to the applicant for comment on 7 February 1997. On the referral memorandum, the applicant acknowledged that he read and understood the unfavorable information presented against him and that he intended to submit matters in his behalf within ten days of the endorsement. The applicant also requested a personal appearance with the Commanding General of the 21st TAACOM prior to his filing decision with regard to the GOMOR.

11. On 10 April 1997, the applicant responded to the GOMOR with the following written comments:

         a. The incident occurred while he was deployed to Kaposvar, Hungary, in support of Operation Joint Endeavor and he was redeployed to the 21st TAACOM in Kaiserslautern, Germany one week later.

         b. The applicant requested that the GOMOR not be placed on his OMPF. The applicant argued that the GOMOR be tendered, but not filed on his OMPF.

         c. The applicant stated that he was not a liar and that he could provide character witnesses to support this claim. The applicant provided nine letters of support as attachments with his rebuttal of the GOMOR.

         d. The applicant contended that the SR had very little "experience" with him and that the core of the alleged misconduct described in this reprimand is a brief exchange between himself and COL R on a soccer field. The applicant continued that at the moment of the questions, he did not remember the incident, but over time and with more thought, he recalled the incident and provided information as to his knowledge of the events.

         e. The applicant also stated that he was distracted by his thoughts and physical exertions, that the event concerning the weapon was unremarkable, and that there was nothing in his encounter with COL R to prompt his memory or focus his thoughts on this incident because he did not know of any weapon being taken to the LSA. The applicant further described the situation at the moment as "my heart still pumping from the soccer game we had just played; I had sweat pouring down my face; I had my wife by my side; I was on leave and looking forward to traveling the next day to the Netherlands; and I had put a 9 month deployment behind me. So it should not be surprising that when COL R approached me in this informal setting that my mind was not at it sharpest focus."

         f. The applicant contended that based on his experience throughout deployment, keeping your weapon with you overnight was common and that he had done so on numerous occasions as had thousands of others. The rule on weapon security as he understood it was that if your weapon was not in the arms room, it should be on your person.

         g. The applicant argued that CPT G did not take his weapon to the LSA and that there was not an exhaustive discussion of the issue. The applicant contended that he had never met CPT G before that day and when they returned from the LSA, he learned that CPT G had left the pistol in his room. The applicant continued "But as he had not lost it, no harm was done."

         h. The applicant contended that his comments to COL R on the soccer field were " immediate, off the top of his head, without pause for reflection and perfectly honest." He continued that past events were "unmemorable and stale" and that his lack of recollection was reasonable, not unusual, and furthermore, that he had no motive to be anything less than honest.

         i. The applicant argued that COL R had since told him that on that day there was nothing in his demeanor, character, personality or duty performance that led him to this adverse conclusion and that it was based only on his experience of human nature. The applicant continued that the SR stated that "he would expect someone to remember events that occurred two weeks prior."

         j. The applicant stated that he called CPT G and that they discussed the events of that day. The applicant continued that during this discussion, his recollection was refreshed as to times, movements and general sequence of events and that the discussion reached a point where our recollections differed and the conversation ended. The applicant stated that he "did not ask him to lie and that he did not say or imply that he would lie." The applicant contended that he "had nothing to hide and that he never discussed a plan to lie with CPT G."

         k. The applicant stated that an Army Regulation 15-6 investigation was completed on CPT G regarding the allegation that he had taken his pistol to the LSA. The investigating officer reached four adverse findings of fact that were deemed legally sufficient by the Staff Judge Advocate of V Corps. The applicant stated that the only adverse finding for himself was that he had given CPT G bad advice which was a mistake which he readily admitted.

         l. The applicant stated that he faxed a statement to the investigating officer which was true and accurate and that CPT G was found (and admitted) to having made untrue and deceptive statements to different people. The applicant continued that he made mistakes and forthrightly admitted them and that he has learned from the experience. The applicant stated that he should have been proactive in helping CPT G in turning in his pistol and that he gave CPT G bad advice with regards to possession of his pistol. In addition, the applicant stated that he "answered a question from my SJA by giving him an unconsidered response off of the top of my head." He concluded that he has learned that no question asked by a superior is unimportant and that he should have thought about the matter and given COL R a thoughtful and considered answer.

         m. The applicant argued that filing the reprimand would have a catastrophic effect on himself and his family and would destroy the tremendous investment the Army has made in his education, training and experience. The applicant continued that "The Army has evaluated me for over 11 years and knows that my integrity, performance, and character are outstanding. A lifetime demonstration of character and honesty must be worth something when compared against allegations that are unsupported by facts. I am surely worth the benefit of the doubt."

12. On 2 May 1997, the Commanding General of the 21st TAACOM rendered his filing decision on the GOMOR in a memorandum to the Commander of the United States Total Army Personnel Command. The Commanding General acknowledged in this memorandum that he considered the applicant's written and oral comments prior to rendering his filing decision. The Commanding General wrote that the GOMOR was to be permanently filed on the applicant's OMPF and he forwarded the GOMOR and the applicant's written response to appropriate Department of the Army officials for filing.

13. The contested OER was a change of duty report which covered 5 months of rated time for the applicant's duties as Officer-In-Charge, Claims Section.

14. Records show that COL R, the Staff Judge Advocate of the 21st TAACOM, was the applicant's SR during the rating period and was also the individual that accused the applicant of lying.

15. The rater, a major in the position of "Officer-In-Charge," signed his portion of the contested OER on 21 May 1997 and the SR signed his portion of the contested OER on 21 May 1997. The applicant signed Part Ile (Signature of Rated Officer) of the contested OER on 21 May 1997, which attested that the administrative portion of the contested OER was correct. Part Io (Rated Officer Copy) of the contested OER contains an "X" in block number 2 (Forwarded to Officer) and the entry "970604" [4 June 1997].

16. Part IVa (Professional Competence) of the contested OER shows that the applicant received ratings of "1" in 12 of 14 elements ["1" is the highest rating and "5" is the lowest rating]. The applicant received in block number 8 (Displays sound judgement) a rating of "2" and in block number 11 (Sets and enforces high standards) a rating of "2."

17. In Part IVb (Professional Ethics) of the contested OER, the rater provided positive comments including: "A quick study who can perform new tasks quickly and efficiently" and "Able to perform to standard under great physical and mental stress" among others.

18. In Part Vb (Performance during the rating period), the rater placed his "X" in the second box (Usually Exceeded Requirements).

19. In Part Vc (Comments on Specific Aspects of the Performance), the rater provide the following comments:

         a. "Without prior claims experience [the applicant's name omitted] admirably performed his claims duties through quick study and dedication to accomplishing the mission."

         b. "Overall, he met the important United States Army Europe Quality of Life Standards for processing claims."

         c. "Specifically, his claims section exceeded the large claims processing goal of 21 days; improving processing of large claims by 27 percent over the preceding year."

         d. "Regrettably, the Commanding General issued [the applicant's name omitted] a Memorandum of Reprimand for lying during an investigation into whether a weapon had been properly secured."

         e. "Despite the scrutiny he received during the investigation and the imposition of the reprimand, [the applicant's name omitted] maintained his composure and provided valuable assistance to fellow attorneys and his support staff, including sharing his criminal law experience with the new trial counsel."

         f. "He has demonstrated that he is a knowledgeable and dedicated attorney committed to helping his fellow soldiers."

20. In Part Vd (This Officer's Potential for Promotion to the Next Higher Grade), the rater placed his "X" in the third box (Do Not Promote) and provided the following comments: "[The applicant's name omitted] has excellent potential to perform as an attorney. However, based on the reprimand he received, it is questionable whether he has promotion potential to field grade as a Judge Advocate."

21. In Part VIIa (Potential Evaluation) the SR placed his "X" in the seventh of nine blocks which resulted in a SR profile of (21/31/9/0/0/0/1*/0/0) with the asterisk representing the applicant's position in the SR profile. The SR rater profile also indicates that the total number of captains rated by the SR was 40.

22. In Part VIIb (Comments) the SR provided the following comments: "[The applicant's name omitted] has performed ably as a Claims Attorney during this rating period. However, I have determined that he is a liar. [The applicant's name omitted] lacks the moral courage and integrity demanded of a commissioned officer. His lack of personal and professional ethics makes him unfit to lead soldiers in any capacity. Consequently, he has no potential for further service and should be separated from the Army."

23. On 21 May 1997, the SR, based on the "Do Not Promote" evaluation and derogatory comments, referred the contested OER to the applicant for acknowledgement and comment. The referral memorandum provided a suspense date of 26 May 1997 for the applicant to respond.

24. The applicant initialed the referral memorandum indicating that he intended to submit comments regarding the OER by the suspense date of 26 May 1997.

25. On 24 May 1997, the applicant provided a written response to the referral memorandum and made the following statements:

         a. "The adverse comments of the Senior Rater are untrue and completely without basis in fact."

         b. "The core of this alleged misconduct is a brief exchange between the Senior Rater and myself."

         c. "The reprimand referred to by the rater was written by the Senior Rater. The Senior Rater, who considered himself the victim of my supposed misconduct and was the sole witness of it, as the Staff Judge Advocate, is the same person who related the "facts" to the Commanding General and advised him that the reprimand was legally sufficient."

26. The contested OER along with the referral documentation was forwarded to Department of the Army officials for profiling and placement on the applicant's OMPF.

27. There is no evidence that the applicant requested a commander's inquiry; there is no evidence that the applicant appealed the contested OER to the Department of the Army Special Review Board (DA Special Review Board); and there is no evidence that he appealed the GOMOR to the DA Suitability Evaluation Board (DASEB).

28. The applicant's evaluation history as a captain contains eleven OERs completed on DA Form 67-8.

29. The following evaluation history is provided for the ten OERs (excluding the contested OER) that the applicant received as a captain.


30. In Part Va of each of the evaluation reports, the applicant received ratings of "1" in all 14 elements of professional competence and received numerous positive comments under professional ethics and competence from seven different raters.

31. The raters placed their "X" in first box (Always Exceeded Requirements) in Part Vb (Performance During This Rating Period) and provided numerous positive comments on all ten of the applicant's evaluation reports.

32. The raters placed their "X" in the first box (Promote Ahead of Contemporaries) in Part Vd (This Officer's Potential For Promotion to the Next Higher Grade) and provided numerous positive comments on the applicant's potential on all ten of the evaluation reports.

33. The applicant received ratings from five different SRs. On six of the applicant's evaluation reports where he was rated as a captain, the SRs placed their "X" in the first of nine boxes which resulted in an "Above Center of Mass" rating. On the four remaining reports, the SRs placed their "X" in the second of nine boxes which resulted in a "Center of Mass" rating. Each of the SRs provided numerous positive comments regarding the applicant's performance and potential.

34. Records show that the applicant tendered his unqualified resignation and, as a result, he was separated on 6 October 1997 with 11 years, 10 months and 1 day of active Federal service.

35. There is no evidence of record that the chain of command in Hungary departed from the investigation officer's recommendation to tender CPT G a reprimand to be "locally filed and removed upon his depature."

36. The applicant provided the results of a clinical polygraph test administered by a licensed polygraph examiner. The test was completed on 16 September 2000, and the results state that the applicant was being tested to determine the truthfulness of his statement that he had accurately reported to the Staff Judge Advocate in September of 1996, when he asked the applicant if he recalled CPT G carrying his weapon into the LSA. The applicant responded that he did not recall any detail at the time asked, 12 days after the fact and in a different country. The applicant further responded that the question was unexpected and came during a conversation after a soccer match. The applicant was asked three questions regarding the incident as well as other "irrelevant" and comparison questions and the findings indicate that he was truthful in answering each of the questions.

37. The ABCMR requested that the DA Special Review Boards review the applicant's request and provide an advisory opinion. The DA Special Review Boards opined that the applicant did not exhaust his administrative remedies prior to applying to the ABCMR for removal of the contested OER and the GOMOR.

38. The DA Special Review Boards forwarded the application to the DA Suitability Evaluation Board for review of the GOMOR. The DA Suitability Evaluation Board determined that the evidence did not support removal of the GOMOR in accordance with chapter 7 of Army Regulation 600-37 (Unfavorable Information). The DA Suitability Evaluation Board further opined that the GOMOR was not found to be either incorrect or unjust; therefore, there was no basis to remove the contested OER.

39. Attached to the DA Special Review Boards Agency advisory opinion is a copy of the DA Suitability Evaluation Board decision summary which addressed the issue of removing the GOMOR. The DA Suitability Evaluation Board decision summary concluded the following:

         a. 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 a competent authority.

         b. That the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document was untrue or unjust.

         c. That the GOMOR was correctly administered and filed, after the Issuing Authority reviewed the applicant's rebuttal statement.

         d. That with the exception of the polygraph test results, the applicant's rebuttal statement addressed all of the substantive issues presented in the applicant's attorney statement.

         e. That the Commanding General of the 21st TAACOM (also referred to as the Issuing Authority) made the decision to file the GOMOR in the applicant's OMPF after considering the issues raised in the applicant's rebuttal.

         f. The DASEB opined that the GOMOR Issuing Authority did not find the issues the applicant raised to be sufficiently convincing that the GOMOR was incorrect or unjust.

         g. The DASEB noted that the polygraph examiner's opinion is that the applicant was truthful when answering the three questions. However, the DASEB did not find this to be sufficiently convincing evidence to warrant removal of the GOMOR.

         h. The DASEB recommended that the request to remove the GOMOR be denied due to lack of convincing evidence that the GOMOR is incorrect or unfair.

40. The advisory opinion was forwarded to the applicant on 29 July 2003 for review and comment. The applicant was given 40 days to provide written comments in response to the advisory opinion. There is no evidence that the applicant responded to the request for review and comment.

41. Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system. It provides the opportunity to request a commander's inquiry or to appeal disputed reports. Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

42. Army Regulation 623-105 provides for a commander’s inquiry in cases where it is brought to the attention of a commander that an OER rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation. The primary purpose of a commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. A secondary purpose of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, Department of the Army. The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain. The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.

43. Army Regulation 623-105, in effect at the time the contested OER was rendered establishes the policies and procedures for the OER system. Section I of chapter 4 addresses evaluation principles. Paragraph 4-1d specifically states that rating officials have a responsibility to balance their obligations to the rated officer with their obligations to the Army. Rating officials must make honest, fair evaluations of the officers under their supervision. On the one hand this evaluation must give full credit to the rated officer for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Department of the Army selection boards and career managers can make intelligent decisions.

44. Paragraph 4-27 of Army Regulation 623-105 requires that certain types of OER be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army. Listed among those types of OER’s requiring referral are any report with negative remarks about the rated officer’s ethics in Part IVb and/or in the rating officials narrative. Further, the regulation also requires that any report with a potential evaluation in Part Vd of “Do not promote” or narrative comments to that effect from any rating official require referral to the rated officer.

45. Paragraph 4-11c(4) of Army Regulation 623-105 provides that the rated officer signs and dates the OER before sending it to the rater. The rated officer's signature verifies the accuracy of the administrative data in Part I (except item o), the rating officials in Part II, and the APFT [Army Physical Fitness Test] and height and weight data in Part IV. This action increases the administrative accuracy of the OER since the rated officer is most familiar with and interested in this information. Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data, which by the exercise of due diligence by the rated officer would have been corrected.

46. Army Regulation 600-8-104 (Military Personnel Information Management Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by: the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

47. Table 2 of the Army Regulation 600-8-104 pertains to the composition of the OMPF. It states, in pertinent part, that administrative letters of reprimand will be filed on the permanent fiche.

48. Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. Chapter 3 covers unfavorable information in official personnel files. Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand (LOR) or censure in official personnel files. Paragraph 3-4(b) provides for filing in the OMPF. It states that a letter, regardless of the issuing authority may be filed in the OMPF maintained by the U.S. Total Army Personnel Command (PERSCOM), the Army Reserve Personnel Command (ARPERSCOM), or the proper State Adjutant General (for Army National Guard Personnel) only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual. Letters filed in the OMPF
will be filed on the performance portion (P-fiche). The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.

49. Paragraph 7-3 of Army Regulation 600-37 pertains to processing appeals and petitions. It states that appeals and petitions (in military letter format) should be prepared and sent directly to the President, DA Suitability Evaluation Board. The DA Suitability Evaluation Board will review and evaluate the evidence available and make final determinations within that authority not otherwise held by the Department of Military Personnel Management.

CONCLUSIONS:

1. The Board noted the following facts pertinent to the applicant's reprimand and adverse OER:

         a. The Army Regulation 15-6 investigation determined that CPT G failed to properly secure his weapon.

         b. The applicant gave bad advice to CPT G in regards to securing his military weapon.

         c. The investigating officer opined that CPT G should receive a reprimand filed locally and removed upon his departure. The investigating officer also stated that " This is not a severe penalty under the circumstances and is supported by the level of seriousness of the finding and the previous and general character of the respondent (CPT G)."
        
         d. The investigating officer also stated that the applicant should receive a GOMOR, but only if filed locally. The investigating officer determined that a more severe sanction would result in the applicant receiving more punishment than CPT G for substantially less involvement.

         e. The V Corps Staff Judge Advocate opined that the investigating officer's recommendations were proper and legally sufficient. However, he also stated that CPT G was the only one without dispute that deceived the investigating officials.

2. The Board noted the filing decision of the Commanding General of the 21st TAACOM which directed that the GOMOR and related correspondence be permanently filed in the applicant's OMPF.

3. The Board reviewed the character references provided in response to the GOMOR which assert that applicant's ethics and moral conduct were above reproach.

4. The Board noted that the applicant's SR was also the accuser in this matter, as well as the legal advisor to the general officer who imposed the GOMOR and directed its filing in the applicant's OMPF.

5. Upon review of all of the facts in this case, the Board determined that it was inappropriate for the accuser in this case to act as legal advisor to the Commanding General. The Board further determined that COL R who was also the applicant's SR should have recused himself from the duties as legal advisor to the Commanding General of the 21st TAACOM in this case.

6. Based on the foregoing, the Board determined that the issuance of the GOMOR and the decision to permanently file it in the OMPF appears to be unjust due to the compromised actions of the colonel in the position of SJA of the 21st TAACOM who acted in the capacity of both accuser and legal advisor in this matter and who also acted contrary to the recommendations of the investigating officer and the V Corps SJA.

7. Based on the foregoing, the Board determined that the GOMOR and all related documents were unfairly tendered, particularly in view of COL R's roles in its preparation and review, and recommendation of the investigating officer and the SJA of V Corps and the actions recommended in CPT G's case. Therefore, the Board determined that the GOMOR and all related documents should be expunged from the applicant's records.

8. Further, the Board noted that the basis for the rater's "Do Not Promote" evaluation and the SR's adverse comments and seven-block rating were the matters essentially described in the GOMOR. Further, the Board noted that COL R acted contrary to the recommendations of the investigating officer and the legal opinion of the V Corps Staff Judge Advocate, thereby indicating that COL R's actions in this matter were not impartial. As a result, the Board determined that the SR's apparent lack of impartiality in the matters related to the GOMOR tainted the contested OER. Therefore, the Board determined that the contested OER and all related documents should be expunged from the applicant's records.

9. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by removing the General Officer Memorandum of Reprimand from the OMPF of the individual concerned.

2. That all of the Department of the Army records related to this case be corrected by removing the OER for the period 13 September 1996 through 4 May 1997 and all associated documents from the applicant OMPF.

3. That all of the Department of the Army records related to this case be corrected by placing a nonrated statement on the applicant's OMPF for the period 13 September 1996 through 4 May 1997.

BOARD VOTE:

__AAO__ _REB ___ __ECP__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Mr. Arthur A. Omartian
                  CHAIRPERSON

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INDEX

CASE ID	AR2003086180
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/11/13
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schnieder
ISSUES 1.	GOMOR
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