RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           28 September 2004
      DOCKET NUMBER:   AR2004100092


      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. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Karen Fletcher                |     |Member               |
|     |Mr. Ronald Blakely                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the general officer memorandum of reprimand
(GOMOR) dated 28 September 1999 be removed from his Official Military
Personnel File (OMPF) or, in the alternative, be transferred to his
restricted fiche; that he be promoted directly to colonel, O-6 or, in the
alternative, that his records be considered by a special selection board
(SSB) for promotion reconsideration to colonel; that he be awarded all back
pay and allowances to which he would  be entitled if directly promoted to
colonel if selected for promotion by an SSB; and that his Officer
Evaluation Report (OER) for the period 17 April through         4 December
1999 be removed from his records.

2.  Counsel states that the applicant had a stellar career as a military
intelligence officer up until he was given the GOMOR.  His Africa service
began in 1989 in Kinshasa, Zaire.  He received laudatory OERs for that
assignment, his assignment as Chief, Middle East/Africa Branch, and his
assignment as Chief, Balkan Intelligence Support Element.  After returning
to service in Africa in 1995, he continued to demonstrate his gifted
leadership abilities as Chief, Office of Defense Cooperation (ODC),
Botswana.  He received outstanding OERs during this assignment, including
his first one from Major General (MG) L___ in April 1999.

3.  Counsel states that, since the GOMOR was issued, the applicant
continued to display outstanding leadership qualities and was selected to
serve in positions of increased trust and responsibility.  Apart from the
allegations giving rise to this application, the applicant's administrative
abilities were never called into question by any of his commanders or his
subordinates, whether military or civilian.

4.  Counsel states that, as the Chief, ODC, Botswana, the applicant sought,
by memorandum dated 4 February 1999, the assistance of his commander, MG
L___, in resolving questions over the appropriateness of certain minor
expenditures at ODC Botswana.  In response, MG L___ ordered that an Army
Regulation (AR) 15-6 investigation be conducted.  That investigation was
concluded on 26 June 1999 and the applicant did not review it or receive a
copy of it until October 1999.

5.  Counsel states that the AR 15-6 report determined that there was no
evidence of willful intent to defraud and/or gross negligence in the
execution of financial management responsibilities by any member of the ODC
Botswana.  The AR  15-6 report also determined that oversight by
Headquarters, European Command (EUCOM), specifically, J-4 Logistics and
Security Assistance, (ECJ4)) had been lacking or was inadequately performed
to maintain awareness of what was going on in ODCs, especially ODCs which
were minimally resourced.  The   AR 15-6 report recommended that ECJ4
develop training programs to resolve the inadequacies and also noted that
the recommendation was a reaffirmation of a recommendation made in a 1994
Inspector General (IG) report.

6.  Counsel states that in one area of concern, that the applicant
requested and was reimbursed for two hotels on the same date, the AR 15-6
report cleared the applicant of any wrongdoing.

7.  Counsel states that the findings of the AR 15-6 investigation may have
come as a surprise to MG L___ who, as the Director of Logistics and
Security Assistance, was responsible for the training, staffing, and
supervision of the ODC offices.  It was important to note that MG L___
assumed the role of Director of Logistics and Security Assistance in 1996
and should have known about the deficiencies.

8.  Counsel states that apparently at the same time the AR 15-6 report was
being prepared, MG L___ ordered a second investigation into the
administration of ODC Botswana.  The ECJ4 Staff Inspection Assistance
Program (SIA) carried out this investigation.  The investigating officers
(IOs) served under MG L___'s command at ECJ4.  The SIA team generated six
findings, six observations, and one commendable.  Deficiencies in the area
of logistics were observed.  In the area of Manpower, Personnel, and
Administration, one finding was that the ODC had no leave program
established, no leave control log or any guidance regarding leave policy.
Counsel notes that the applicant used the same leave program that was in
place prior to his arrival.  Moreover, all leave was required to be
approved by ECJ4.  As the approving authority, ECJ4 must have maintained a
record of all leave requested, approved, and taken.  A second finding was
that the ODC Chief and Administrative Noncommissioned Officer (NCO) had
both been on leave without any leave papers being submitted.

9.  Counsel states that the SIA team noted that the applicant requested and
was reimbursed for two hotels on the same date and the overpayment needed
to be corrected.  However, this was the same charge of which the AR 15-6
investigation had cleared the applicant of any wrongdoing.

10.  Counsel states that the findings regarding the ODC Botswana's leave
program apparently prompted MG L___ to order yet another investigation, by
the U. S. Army Criminal Investigation Command (CID).  CID uncovered or
substantiated no criminal conduct although it did find that one of the
applicant's subordinates was able to charge "numerous expenses to the U. S.
Government and excessive travel, which should have been unauthorized."  The
only allegation against the applicant was that he "claimed 11 days
permissive TDY when AR 600-8-10 only allows for 4 days of the purposes of
career management, the remainder should be charged against his regular
accrued leave."  CID raised once again, however, apparently serious
concerns about MG L___'s own management of the ODC program.

11.  Counsel states that based on the findings of the above investigations,
MG L___ issued the applicant a GOMOR and advised him it would be placed in
his OMPF.  However, the applicant was not afforded an opportunity to review
and respond to all the documents on which the allegations were based prior
to MG L___'s approval of the GOMOR and its inclusion in his OMPF.  Although
the GOMOR indicated the applicant had been provided with copies of the
inquiries, he was not provided those documents until October 1999.  He had
only been given, prior to the issuance of the GOMOR, his own statement to
CID and the      25 May 1999 preliminary report of the ECJ4 SIA team.  He
had not previously received a copy of the CID report or the report of the
AR 15-6 investigation.  Moreover, the Army violated AR 600-37 by failing to
list in the proposed GOMOR the applicable portions of the investigations,
reports, and other documents that served as the basis for the GOMOR as
expressly required.

12.  Counsel states that the Army's violations of the applicant's
procedural rights severely prejudiced his ability to defend himself against
the allegations.  Had he been afforded an opportunity to consider the AR 15-
6 report, his defense would have been strengthened considerably.  Also, a
timely disclosure of the CID report was crucial for his rebuttal of the
GOMOR.  That was the only document that contained details of the specific
allegations that formed, in large measure, the basis of the GOMOR.  Without
the report, he was left to speculate about the allegations he was defending
himself against.  It also would have shed considerable light on ECJ4's own
culpability.  Furthermore, because the CID report referred to the impending
publication of a separate report addressing the deficiencies in ECJ4's
oversight of ODC Botswana, that report also should have been made available
to the applicant.

13.  Counsel states that MG L___ failed to adequately consider the
circumstances of the case in deciding to issue the applicant a GOMOR and
place it in his OMPF; failed to adequately consider alternative nonpunitive
measures; and failed to adhere to the Army's instruction to not include a
GOMOR deriving from "honest mistakes chargeable to sincere but misguided
efforts" in the performance portion of the applicant's OMPF.  The
allegations upon which the GOMOR was based, none of which involved personal
conduct by the applicant, paled in comparison to the enormity and
complexity of the tasks he effectively carried out as Chief of ODC
Botswana.  Also, it was highly disingenuous for MG L___ to admonish the
applicant so severely when clear evidence demonstrated that the allegations
cited were the product, at least in substantial part, of his own
substandard performance as ECJ4's Director of Logistics and Security.

14.  Counsel also states that MG L___ was disqualified from action on the
applicant's case once he became aware of ECJ4 training and oversight
failures.  Where an officer has reason to doubt his own ability to act
impartially and without bias, the proper course of action is to remove
himself from the particular action.  There is no doubt that MG L___
actually influenced the decision-making process, as it was a process that
he initiated, controlled, directed, and approved.  The investigations
ordered by MG L___ revealed serious ECJ4 inadequacies in the areas of
training and supervision.  Thus, the investigations strongly suggested that
MG L___ was derelict, or at least negligent, in the performance of his own
duties in relation to ODC Botswana.  Once he was aware that his own
performance was implicated, his interest in the matter became "other-than-
official."  At that point, the proper course of conduct for him would have
been to recuse himself from the investigation and transfer the matter to a
neutral general officer for further consideration.  There was no
opportunity for independent review of MG L___'s findings or his decision to
issues the GOMOR.  In that manner, he influenced the decision-making
process to the utmost degree possible.

15.  Counsel states that the placing of the GOMOR was a grossly
disproportionate response to the allegations contained in the GOMOR.  The
wording and issuance of the GOMOR cast a strong general doubt over the
applicant's overall abilities as an administrator and leader.  It appears
that the disproportionate nature of the GOMOR was recognized by his
subsequent commanders, who, notwithstanding the GOMOR, placed him in
positions of increased trust and responsibility.  MG L___ also failed to
take into consideration the extreme demands of the position of Chief, ODC
Botswana, including the requirement that the applicant travel extensively
in the Southern Africa region.  Because of these demands, he was obligated
to delegate day-to-day administrative functions to others, to include the
administration of the travel and leave programs, the principal source of
the allegations against him.

16.  Counsel states that it was simply not possible for the applicant to
closely monitor the day-to-day administration of ODC Botswana and
simultaneously accomplish the complex and difficult missions that he was
assigned.  He states that it is profoundly unjust that errors directly
attributable to the actions of the administrative NCO, the lack of training
of ODC Botswana staff, and the lack of effective ECJ4 oversight should form
the basis of a GOMOR whose conclusion is that the applicant is not
competent to serve in positions of trust and responsibility.
17.  Counsel provides 22 enclosures with his application:

     a.  enclosures 1 through 9 – OERs for the periods ending 11 September
1993; 21 May 1994; 30 April 1995; 30 April 1996; 30 April 1997; 16 April
1998; 16 April 1999; 7 April 2001; and 17 July 2002;

     b.  enclosures 10 through 12 – a performance evaluation dated 19 March
1996 from the American Ambassador to Botswana; a performance evaluation
dated 18 March 1997 from the American Ambassador to Botswana; and a letter
in support of extending the applicant's tour of duty dated 28 January 1998
from the American Ambassador to Botswana;

     c.  enclosure 13 – a message from the applicant, dated 25 July 1995,
to Headquarters, EUCOM, Subject:  Security Assistance Automated Resource
Management (SAARMS) Program Training;

     d.  enclosure 14 – a message from ODC Botswana, dated 4 February 1999,
to MG L___, Subject:  ODC Botswana SAARMS File Budget Concerns;

     e.  enclosure 15 – a memorandum from MG L___, dated 10 March 1999,
appointing an IO;

     f.  enclosure 16 – a memorandum to MG L___, dated 29 June 1999,
Subject:  Informal Investigation of ODC Botswana on Matters of Financial
and Administrative Management;

     g.  enclosure 17 – an undated 1st endorsement from MG L___, Subject:
ECJ4 Staff Inspection and Assistance (SIA) Program Inspection of the Office
of Defense Cooperation (ODC) Botswana, 03-07 May 1999, with the inspection
report attached, for ODC Botswana, State Department Pouch Room, Washington,
DC;

     h.  enclosure 18 – a CID Agent's Investigative Report, dated 7
September 1999;

     i.  enclosure 19 – the GOMOR, dated 28 September 1999;

     k.  enclosure 20 – apparently a mail receipt, dated 1 October 1999;

     l.  enclosure 21 – the applicant's response, dated 30 September 1999,
to the GOMOR; and

     m.  enclosure 22 – 17 letters of appreciation/commendation/similar
accolades.
CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was commissioned
in February 1978.  He was promoted to lieutenant colonel, Military
Intelligence, on  1 October 1994.

2.  Around May 1995, the applicant was assigned duties as the Chief, ODC,
Botswana.  In his OER for the period 1 May 1995 through 30 April 1996, his
rater noted there was "not a finer officer in the Army today."  His senior
rater (SR) noted, "He is a must for Senior Service College and promotion.
His SR gave him a top block but dual center of mass rating
(*77/74/4/0/0/0/0/0/0, the asterisk indicating the applicant's rating).

3.  In his OER for the period 1 May 1996 through 30 April 1997, the
applicant's rater noted that he was the rater's most active Security
Assistance Officer in terms of countries supported and diverse operating
conditions.  His SR noted he "easily rates among the top of my Security
Assistance Officers…" and gave a top block but center of mass rating
(*9/0/0/0/0/0/0/0/0).

4.  In his OER for the period 1 May 1997 through 30 September 1997, the
applicant's rater noted his "Outstanding performance by a superb soldier
and leader."  His SR noted he continued "his outstanding accomplishments as
a leader of Security Assistance on the African continent and gave a top
block but center of mass rating (*43/0/0/0/0/0/0/0/0).

5.  In his OER for the period 1 October 1997 through 16 April 1998 (under
the new system), the applicant's rater noted he "was a sterling officer."
His SR noted he "led his Security Assistance team with distinction…with a
vigor unmatched for any Security Assistance Officer within my Directorate"
and rated him center of mass.

6.  In his OER for the period 17 April 1998 through 16 April 1999, for
which MG L___ acted as both rater and SR, MG L___ noted that his
"performance as Chief of the Office of Defense Cooperation in Gaborone,
Botswana has been consistently outstanding…"  In his senior rating, MG L___
noted that the applicant amply demonstrated his potential for service in
positions of greater responsibility and rated him center of mass.

7.  On 4 February 1999, the applicant sent a memorandum to MG L___
requesting ECJ4 review the SAARMS file and to advise of any possible
billing discrepancies.

8.  By memorandum dated 10 March 1999, MG L___ appointed an IO pursuant to
AR 15-6 to investigate allegations of improper expenditures of Government
funds for services and material by the personnel assigned to ODC, Botswana.
 In addition, the IO was to investigate the circumstances of the ODC,
Botswana having temporary duty (TDY) orders to Stuttgart, Germany that
authorized him to "carry a military issue firearm in execution of the TDY"
and to investigate an alleged practice of claiming reimbursement for two
rooms on the same night while in TDY status.

9.  The IO responded by memorandum dated 29 June 1999.  The IO noted that
the investigation team found that publications and training were
contributory to the discrepancies noted in the ODC Botswana.  The IO also
noted that the actions raising the most recent concerns of financial
practice at ODC Botswana were not solely attributable to the suspect
practices of the current regime.  Documentation pointed out that since 1990
there had been little deviation in the way that residential maintenance was
paid and it was further apparent that oversight by Headquarters, EUCOM was
lacking or was inadequately performed to maintain awareness of what was
going on in ODCs, especially ODCs which were minimally resourced.

10.  The IO found that there was no evidence of willful intent to defraud
and/or gross negligence in the execution of financial management
responsibilities by any member of the ODC Botswana.  The IO found that two
expenditures remained for which the requisite authority was not obtained
prior to acquisition of the items and/or service.  The investigation team
recommended approval of the Morale, Welfare, and Recreation Enhancement
Plan so two sun awnings could be retained and recommended approval of the
INTERNET installation charges and fees.

11.  The IO found that the applicant owed $498.37 in financial liability
for his proportional share of maintenance fees associated with his personal
residence for the prior fiscal year ($295.90 (since the Embassy committed
to covering the costs only for the current year); $104.32 in personal phone
charges, designated as official but not supportable by available documents;
and $98.15 in miscellaneous residence expenses).

12.  The IO found that TDY orders were improperly executed authorizing the
applicant to carry a firearm but no weapon was in fact carried and the
entry on the orders was copied from previous orders.

13.  The IO found that no paid travel claims were found to support the
allegation that the applicant claimed reimbursement for two rooms on the
same night while in TDY status.  An erroneous entry on the orders was the
extent of the wrongdoing.

14.  The IO found that training of ODC Chiefs and personnel assigned
administrative and financial management responsibilities was inadequate or
non-existent.

15.  The IO noted in passing in his Recommendations that smaller ODCs
receive their SIA every two years, give or take a few months.  Apparently,
the previous SIA at ODC Botswana was in 1997.  The IO also noted that at
the conclusion of their on-site investigation and prior to their departure,
the team out-briefed the applicant on the results of their inquiry to that
point.

16.  During the period 3 through 7 May 1999, an SIA of ODC Botswana was
conducted, apparently as a matter of routine.  The inspection revealed six
findings, six observations, and one commendable.  Three findings were in
the logistics area.  Two findings were in the Manpower, Personnel, and
Administration area – one that the ODC did not have a leave program and one
that the ODC Chief and Administrative NCO both took regular and/or FEML
(Funded Environmental and Morale Leave) but never processed leave paperwork
to be charged for their time off.  The sixth finding was in the Comptroller
area – that the applicant received government reimbursement for a double
hotel booking.  The SIA had noted in its report that the Comptroller area
was not to be inspected due to a recent AR 15-6 but the finding was
discovered when investigating leave issues.

17.  The SIA report noted that, during the inspection, the SIA team
assisted ODC personnel in areas requiring improvement.

18.  On or about 7 September 1999, the CID completed an investigation of
ODC Botswana.  The (redacted) Investigative Report noted that the
investigation did not substantiate that any criminal offenses had been
committed by the members of the Botswana ODC.  However, the investigation
determined, "based on the statements of (the applicant) and (redacted),
there was an abdication of supervisory responsibility in that travel orders
and settlements were not critically reviewed."  That "allowed (redacted) to
charge numerous expenses to the US Government and take excessive travel,
which should have been unauthorized."  Apparently, the administrative NCO
was the individual primarily cited as committing travel improprieties.  The
applicant was cited once (as claiming         11 days permissive TDY when
the regulation allowed for only 4 days).  The Investigative Report noted
that the CID special agent briefed two individuals on the results of the
investigation.  The two names are redacted (the applicant's name is not
redacted in other parts of the report).
19.  On 28 September 1999, MG L___ issued a GOMOR to the applicant due to
the improper execution of his leadership responsibilities while assigned as
the Chief, ODC, Botswana.  He noted that the result of inquiries
consistently indicated an office management system in disarray and without
meaningful supervision.  The inquires revealed numerous examples of the
questionable use of TDY, unauthorized use of permissive TDY, and an abuse
of the FEML program.  He noted that they also revealed a disregard for the
administrative procedures required by Headquarters, EUCOM for official
travel.  He informed the applicant that, as the officer responsible for the
overall operation in ODC Botswana, he was required to know and enforce the
proper procedures and expect the same of his subordinates.

20.  The applicant acknowledged receipt of the GOMOR on 30 September 1999.

21.  The applicant provided a mail receipt to show he acknowledged receipt
of an unidentified document on 1 October 1999.

22.  The applicant provided rebuttal comments to the GOMOR on 30 September
1999.  He stated that he knew of the AR 15-6 inquiry, the SIA inspection,
and the CID investigation.  Of those inquiries, he was in possession of and
had read the SIA report dated 25 May 1999 and a copy of his unsigned
statement to Special Agent Powlin.  He had neither seen, read, nor received
the final report of the Audit team or the final CID report.  Since the
source of the allegations was unclear to him and the identity of the
individual within ODC Botswana who committed "numerous examples" of
questionable and unauthorized use and abuse remained hidden, he reviewed
the allegations as directed against him solely and responded as such.

23.  On 17 December 1999, MG L___ directed the GOMOR be filed in the
applicant's OMPF.

24.  On 10 December 2003, the Department of the Army Suitability Evaluation
Board (DASEB) considered the applicant's request to remove the GOMOR from
his OMPF or, in the alternative, that the GOMOR be transferred to his
restricted fiche.  The DASEB determined that the applicant submitted
insufficient evidence to show that he was denied procedural rights to
comment on specific adverse allegations; that MG L___ failed to consider
the circumstances of the case and alternative non-punitive measures; or
that the alleged misconduct did not call for actions as harsh as placing
the GOMOR in his OMPF.

25.  The DASEB determined, as regards transferring the GOMOR to his
restricted fiche, that the applicant indicated little acceptance of
responsibility or remorse for the misconduct as specified in the GOMOR;
that no statements in support, particularly a statement of support from MG
L___, of his request were provided; and that he received three center of
mass evaluations (one with minor negative discrepancies) of his duty
performance subsequent to the GOMOR.  The DASEB determined there was
insufficient evidence to transfer the GOMOR at that time.

26.  The contested OER is an 8-rated month change of rater report for the
period 17 April 1999 through 4 December 1999.  MG L___ again served as both
the rater and SR.  No negative comments were made on this OER.  Rater/SR
comments included, "…performance this report period has been consistently
excellent" and "…possesses great potential and has led the way in
developing an innovative and systematic process for shaping the operational
environment in southern Africa via a wide variety of engagement
activities."  The applicant was again rated as center of mass.  His
performance and promotion potential were rated as "Satisfactory
Performance, Promote" and "Fully Qualified," respectively. In the previous
OERs noted above, those areas had been rated as "Outstanding Performance,
Must Promote" and "Best Qualified," respectively.

27.  The evidence of record indicated that the applicant had not yet
appealed the contested OER.  AR 15-185, the regulation under which the Army
Board for Correction of Military Records (ABCMR) operates, states that the
ABCMR will not consider any application if it determines that all available
administrative remedies have not been exhausted.  On 11 August 2004, the
applicant was informed that the ABCMR could not take any further action on
this portion (removing the contested OER from his OMPF) of his request at
this time and it will be discussed no further.

28.  The applicant received three subsequent OERs – two for duties as
Defense/Army Attache (Zimbabwe and Malawi) and one for duties as Chief,
Intelligence Division, U. S. Army South.  All three contained highly
laudatory comments and center of mass ratings.  Apparently, the OER for the
period ending 17 July 2002 is the "one with minor negative discrepancies"
(i.e., his height and weight are shown as 72 inches and 180 pounds; all
other OERs show his height variously as 74, 75, or 76 inches and his weight
between 220 and   225 pounds.)

29.  Army Regulation 600-37 sets forth policy and procedures to authorize
placement of unfavorable information about Army members in individual
official personnel files, and ensure that the best interest of both the
Army and the soldier are served by authorizing unfavorable information to
be placed in and, when appropriate, removed from official personnel files.
In pertinent part, it 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.

30.  AR 600-37, paragraph 7-2b states that only letters of reprimand,
admonition or censure may be the subject of an appeal for transfer to the
restricted fiche.  Such documents may be appealed on the basis of proof
that their intended purpose has been served and that their transfer will be
in the best interest of the Army.  The burden of proof rests with the
recipient to provide substantial evidence that these conditions have been
met.  The transfer of administrative letters of reprimand, admonition, or
censure to the restricted portion of the OMPF under this provision will not
normally serve as the sole basis for promotion reconsideration by a special
board.

31.  AR 600-37, paragraph 3-4b(1)(a) states that a letter to be included in
a soldier's OMPF will be referred to the recipient concerned for comment.
The referral will also include and list applicable portions of
investigations, reports, and other documents that serve, in part or in
whole, as the basis for the letter, providing the recipient was not
previously provided an opportunity to respond to information reflected in
that documentation.

32.  AR 623-105 (Officer Evaluation Reporting System), paragraph 3-
22c(2)(a) states that the SR rates the rated officer's potential in terms
of the majority of officers in his SR population.  In order to maintain a
credible profile, the SR must have less than 50 percent of the rating of a
grade in the top box.  Fifty percent or more of the ratings of a grade in
the top box will result in a center of mass label.

33.  AR 600-8-10 (Leaves and Passes), section XVI states that commanders of
units, normally commanded by officers in the rank of lieutenant colonel or
higher, are authorized to approve permissive TDY when the period of absence
is          10 days or less.  Commanders having general court-martial
authority and major Army commanders are normally authorized to approve up
to 30 days.  It also states that permissive TDY may be authorized for
career management for a maximum absence of 4 days.

34.  AR 600-8-29 (Officer Promotions) states, in pertinent part, that a
commissioned officer may be considered for promotion by an SSB if the board
that considered the officer from in or above the promotion zone did not
have before it some material information (SSB discretionary) or the board
that considered him acted contrary to law or made a material error.

DISCUSSION AND CONCLUSIONS:

1.  On 28 September 1999, the applicant received a GOMOR due to the
improper execution of his leadership responsibilities while assigned as the
Chief, ODC, Botswana.  The GOMOR noted that inquires revealed numerous
examples of the questionable use of TDY, unauthorized use of permissive
TDY, and an abuse of the FEML program.  The GOMOR noted that the inquiries
also revealed a disregard for the administrative procedures required by
Headquarters, EUCOM for official travel.  The applicant was informed that,
as the officer responsible for the overall operation in ODC, Botswana, he
was required to know and enforce the proper procedures and expect the same
of his subordinates.

2.  It is noted that, in the AR 15-6 investigation, the only finding the IO
made concerning TDY exonerated the applicant.  No findings concerning
use/abuse of the FEML program were made.  The IO also noted that at the
conclusion of their on-site investigation and prior to their departure, the
team out-briefed the applicant on the results of their inquiry to that
point.

3.  It is noted that the SIA inspection made two findings in the Manpower,
Personnel, and Administration area – one that the applicant did not have a
leave program and one that the applicant and Administrative NCO both took
regular leave and/or FEML but never processed leave paperwork to be charged
for their time off.  The SIA inspection also made one finding in the
Comptroller area – that the applicant received government reimbursement for
a double hotel booking – the same area of concern for which the AR 15-6 IO
exonerated the applicant.   It is also noted that the SIA report did not
specify that they had briefed the applicant on their findings.

4.  It is also noted, however, that the CID investigation determined,
"based on the statements of (the applicant) and (redacted), there was an
abdication of supervisory responsibility in that travel orders and
settlements were not critically reviewed."  The CID report went on to note
that such an abdication allowed someone (it appears it was the
administrative NCO) to charge numerous expenses to the Government and take
excessive travel that should have been unauthorized.  The applicant was
also cited once, for claiming 11 days permissive TDY when the regulation
allowed for only 4 days.  It appears that the CID agent did not brief the
applicant on the results of the investigation.  Nevertheless, it appears
the applicant was aware of what the CID agent was looking into and what he
found.

5.  It appears that the primary foundation of the GOMOR was the findings of
the CID investigation.  It is acknowledged that those findings primarily
concerned one of the applicant's subordinates, rather than him.  It is
acknowledged that the applicant had a demanding job that required he be out
of direct contact with his office often and caused him to rely on others,
to include his administrative NCO,
to run his office within acceptable standards.  Nevertheless, as a senior
commissioned officer, in charge of the Botswana ODC, the applicant was in
charge of that individual and that office if not actually in "command."  As
such, he had ultimate responsibility for the conduct of his administrative
NCO and that office.

6.  The CID investigation may have been initiated by MG L___; however,
since CID is an independent investigative agency, he did not direct or
control the investigation.  He did not "approve" CID's findings; he merely
took action on their independent findings.  Therefore, counsel's contention
that MG L___ influenced the decision-making process and therefore should
have removed himself from the action is without merit.  MG L___ was within
his rights to issue the GOMOR when he felt the applicant failed to live up
to those responsibilities.  It does not appear that the GOMOR was unjustly
issued or filed on the applicant’s OMPF.

7.  However, it is noted that the applicant went on to other demanding
assignments.  Three subsequent OERs all contained laudatory comments even
though the SR rated him as center of mass.  Considering the new OER system
does not provide for an "easy" above center of mass rating, it does not
appear that a center of mass rating should be held against the applicant.

8.  It is noted that it appears the applicant's OER for the period ending
17 July 2002 is the one identified by the DASEB as having "minor negative
discrepancies" (i.e., his height and weight are shown as 72 inches and 180
pounds when all his other OERs show his height variously as 74, 75, or 76
inches and his weight between 220 and 225 pounds).  However, this
discrepancy is so glaring that it would appear it was an honest oversight
on the part of the applicant rather than an attempt to deceive.

9.  AR 600-37 does not require an individual to accept responsibility or
remorse for any misconduct prior to requesting a GOMOR be transferred to
his restricted fiche.  It is noted that he provides no statements in
support of his request to transfer the GOMOR.  Nevertheless, it is believed
his subsequent OERs, reflecting his actions, should carry more weight than
any verbal expressions of remorse would.  It appears that the GOMOR’s
intended purpose has been served.  It appears that the applicant has
accepted his responsibility for his own and his subordinates' conduct, and
that the GOMOR's transfer to his restricted fiche will be in the best
interest of the Army.  It would be equitable and within regulatory guidance
to transfer the GOMOR and related documents to the applicant’s restricted
fiche at this time.

10.  Nevertheless, since this decision is based only on intent served (not
that the GOMOR was erroneously issued, and therefore erroneously considered
by the promotion board) and there was no material error in the applicant’s
records, the applicant is not eligible for promotion reconsideration by an
SSB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by transferring the GOMOR dated September 1999 and
related documents from his performance fiche to his restricted fiche.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
removing the GOMOR from his records, promoting directly to colonel, O-6 or
having his records considered by an SSB for promotion reconsideration to
colonel.




            ______________________
                    CHAIRPERSON




                                    INDEX

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


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