PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 September 2003
         DOCKET NUMBER: AR2003091492


         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
Mr. Richard P. Nelson		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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 a General Officer Memorandum of Reprimand (GOMOR), dated 8 August 2001, be expunged from his Official Military Personnel File (OMPF). In addition, the applicant requests reconsideration by a Special Selection Board (SSB) for promotion to colonel.

3. The applicant states that he made an allegation against the GOMOR imposing official to the Department of the Army Inspector General Agency (DAIG). The allegation was that the imposing official improperly used United States Army Aircraft Investigation Report information to issue the GOMOR. The applicant further states that the allegation was substantiated and the report of investigation (ROI) was approved by the Vice Chief of Staff, Army (VCSA). In support of his request, the applicant has submitted a copy of a DAIG letter, dated 16 May 2003. He has also submitted copies of two letters of recommendation by recent and current members of his chain of supervision or command.

4. The applicant’s military records show that he was commissioned a second lieutenant of field artillery on 18 September 1981 and has served continuously on active duty since that date. The applicant has held numerous command and staff positions and is a qualified Army Ranger, Parachutist and Army Aviator. He was promoted to lieutenant colonel on 1 April 1998. He completed a tour as an aviation battalion commander and subsequently attended the United States Army War College. The applicant is currently assigned to the Joint Task Force Civil Support Command, Fort Monroe, Virginia.

5. While the applicant was the commander of the aviation battalion, two of the battalion aircraft were involved in a fatal training accident on 12 February 2001. As a result of the accident, a collateral investigation (CI), under the provisions of Army Regulation 15-6, was initiated by the general court martial convening authority (GCMCA). The investigation commenced on 16 February 2001. A Safety Accident Investigation Report (SI) was also initiated by the GCMCA on 17 February 2001.

6. The CI was completed on 25 April 2001 and the legal review of the investigation was completed on 1 June 2001.

7. The SI was completed on 7 June 2001. The applicant was given a copy of the SI on 10 June 2001 and he submitted a rebuttal to it on 21 June 2001.

8. On 26 June 2001, the imposing official met with the applicant to discuss the applicant’s end of command officer efficiency report (OER). The change of command was conducted on 29 June 2001 and the applicant and his family departed for his new assignment at the Army War College in Carlisle, Pennsylvania.

9. A command climate survey was conducted of the applicant’s former battalion on 1 August 2001. The results of the survey were prepared on 7 August 2001 and delivered to the GOMOR imposing official on 9 August 2001, along with a command sensing session that was conducted on 2 July 2001 and prepared on 8 August 2001.

10. The GOMOR imposing official announced that the applicant would be reprimanded at a press conference in Hawaii on 10 August 2001, unbeknownst to the applicant until the imposing official called the applicant at his home in Pennsylvania on 11 August 2001 and advised him of the pending reprimand. The reprimand was dated 8 August 2001 and received by the applicant on 15 August 2001.

11. On 13 August 2002, the Department of the Army Suitability Evaluation Board denied the applicant’s appeal to have the GOMOR removed.

12. On 20 March 2002, the applicant appealed to the DAIG, alleging impropriety on the part of the imposing official. The specific allegation was that the imposing official improperly used United States Army Safety Center aircraft accident report information to issue the applicant a GOMOR.

13. The DAIG conducted an in-depth investigation comprised of a 61 page report, supported by 33 separate exhibits and 29 sworn testimonies. The ROI was approved by the VCSA on 6 May 2003. The staff of the Board has conducted a detailed examination of the ROI and has also obtained a redacted copy for the record.

14. The ROI substantiated the applicant’s allegation that the imposing official improperly used United States Army Safety Center aircraft accident report information to issue him a GOMOR. It further indicates that the timing of the information flow implies that privileged information, to include findings from the SI, was used to direct the CI investigating officer to specific areas that he would not otherwise have examined, which ultimately formed the basis for issuing the GOMOR. In addition, there was evidence that conclusions from the SI were turned into questions to see if the CI investigating officer could find evidence to come to the same conclusions.

15. Army Regulation 385-40 states, in pertinent part, that aircraft accident investigation reports are “close-hold, internal communications of the DA whose SOLE purpose is prevention of subsequent DA accidents.” The regulation further states that the reports and the privileged documents contained therein, may not be used as evidence or to obtain evidence in any disciplinary, administrative, or legal action such as determining pecuniary liability or any other adverse personnel action.

16. Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers. This regulation specifies that promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error, which existed in the records at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have existed that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military or civilian education.

CONCLUSIONS:

1. The DAIG ROI, approved by the VCSA, substantiates the applicant’s allegation that the imposing official used information from the SI to issue him a GOMOR. The Board noted that this is in violation of AR 385-40.

2. Because of this violation, the Board determined that the GOMOR, dated 8 August 2001, and all associated documents, to include the applicant’s rebuttal and any other document that refers to the GOMOR, should be removed from the applicant’s OMPF and destroyed in their entirety. The applicant’s OMPF should then be reconstructed so that there is no evidence of the GOMOR, or any reference to it.

3. The Board considers the presence of the GOMOR in the applicant’s OMPF to constitute material error and to have caused his non-selection to the rank of colonel. Accordingly, the Board determined that, after reconstruction of the applicant’s OMPF, his file should be referred to a SSB for reconsideration for promotion to the rank of colonel, using the criteria established for the FY 2002 and 2003 Army Competitive Category promotion boards.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by

         a. Removing the GOMOR, dated 8 August 2001 and all associated documents, to include the individual’s rebuttal and any other documents that refer to the GOMOR, from the individual’s OMPF and any other military personnel records, to include performance, service and any restricted microfiche.
b. Reconstructing the individual’s OMPF so that there is no evidence of the GOMOR, or any reference to it. The documents should not be moved to a restricted fiche but rather, a new performance fiche should be reconstructed without the aforementioned documents.

c. Upon correction of the individual’s OMPF, return all original documents and microfiche to the Board. In addition, provide the Board with a copy of the newly reconstructed fiche.

d. Upon completion of the actions in a through c, above, forward the individual’s OMPF to US Total Army Personnel Command for consideration by SSBs, constituted using the criteria for the FY 2002 and 2003 Colonel, ACC promotion boards.


BOARD VOTE:

___fne___ ____kah_ ____mhm GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _________Fred N. Eichorn______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091492
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030916
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.