RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            14 December 2006
      DOCKET NUMBER:         AR20060005686


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Michael Flynn                 |     |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:

1.  The applicant requests the removal of a General Officer Memorandum of
Reprimand (GOMOR) dated 18 February 2003 and an Officer Evaluation Report
(OER) dated 19 March 2003 from his Official Military Personnel File.

2.  The applicant states, in effect, that while the GOMOR is filed in his
OMPF, none of his appeal information is contained with that document.  He
also states that he submitted an appeal of his nonjudicial punishment (NJP)
and his appeal was never acted on, nor was it included in his OMPF.  He
continues by stating that the failure to act on his appeal violated his due
process rights to contest untrue information.  He further states that he
appealed to the Department of the Army Suitability and Evaluation Board
(DASEB) twice and without delay.

3.  The applicant provides copies of his appeals to the DASEB, copies of
paperwork he contends is missing from his OMPF, a copy of his mail receipt
showing that his appeal had been received and evidence to support his
claims of innocence.

CONSIDERATION OF EVIDENCE:

1.   The  applicant  was  commissioned  as  a  second  lieutenant   in   the
Pennsylvania Army National Guard (PAARNG) on 6 August 2001 and  was  ordered
to active duty in support of Operation Joint Forge on 14 June 2002.

2.  On 6 January 2003, an officer (major) was appointed to conduct an
investigation under the provisions of Army Regulation 15-6.  The
investigating officer was tasked to conduct an informal investigation into
the facts and circumstances surrounding the alleged misconduct of the
applicant.  At a minimum, he was required to make specific factual findings
and recommendations regarding whether the applicant consumed alcoholic
beverages in violation of General Order #1; whether he authorized,
permitted or  ordered Soldiers under his command to consume or possess
alcoholic beverages in violation of General Order #1; whether he or
Soldiers under his supervision frequented brothels or engaged in sexual
relations with known prostitutes; and whether the applicant used illicit
drugs.

3.  On 30 January 2003, after reviewing the evidence and obtaining the
required sworn statements from members of the unit, the investigating
officer found that there was sufficient evidence to substantiate the
allegations against the applicant.  He recommended that the applicant be
court-martialed or as an alternative, that NJP be imposed against him, that
he receive a “Relief for Cause OER and that he receive a GOMOR to be placed
in his OMPF.

4.  On 8 February 2003, the applicant’s commanding general (CG) informed
him that he was considering whether to impose NJP against him for two
specifications of violation of a lawful order by wrongfully consuming
alcoholic beverages, for four specifications of making false statements
with intent to deceive and one specification of wrongfully and publicly
associating with persons known to be prostitutes.  The applicant
acknowledged that he had received a copy of the GOMOR (dated 8 February
2003) and the investigation conducted under Army Regulation 15-6.  On 10
February 2003, he elected not to demand trial by court-martial and
requested an open hearing in which he would submit matters in person.  On
18 February 2003, the CG imposed NJP against the applicant for the wrongful
consumption of alcohol and for wrongfully associating with prostitutes.
His punishment consisted of a GOMOR (now dated 18 February 2003) to be
placed on the applicant’s performance fiche of his OMPF.  It is also noted
that the GOMOR specifically states that the reprimand was administrative in
nature and not imposed as punishment under the Uniform Code of Military
Justice (UCMJ).  The applicant then elected to appeal the punishment and
submit additional matters in his own behalf.  However, there is no evidence
to show that his appeal was ever acted on by the appeal authority.  The
applicant submitted sworn statements from members of his unit to dispute
the findings of the investigation.

5.  On 19 March 2003, the applicant received a Release from Active Duty
(REFRAD) OER covering the period from 15 June 2002 through 19 March 2003,
evaluating him as an infantry platoon leader of a company task force.  His
rater, the company commander, gave him “No” ratings under all of the Army
values in Part IVa.  In Part IVb, under Leadership
attributes/skills/actions, he received “No” ratings under Conceptual and
Tactical skills and Planning, Executing, Assessing and Learning skills.  In
Part V, under Performance and Potential Evaluation, his rater gave him a
rating of “Unsatisfactory Performance – Do Not Promote”.  In the specific
comments, the rater indicates that despite the good things the applicant
accomplished, he completely undermined every aspect of leadership by
engaging in conduct unbecoming an Army officer on admittedly two occasions
while on duty.  The rater indicates that the applicant was under
investigation (AR15-6) for consuming alcohol while on patrol, for involving
Soldiers of his platoon in consuming alcohol while on patrol, for
soliciting sex from a prostitute while on patrol and allowing one Soldier
under his leadership to solicit as well.  The rater further indicates that
the applicant had been removed from his position while the investigation
continued and that if the allegations were proved to be true, he should be
punished to the maximum extent allowable and separated from military
service.

6.  In Part VII, his senior rater (SR), the battalion commander, placed him
below center of mass and gave him a rating of “Other”.  In his supporting
comments he indicated that the applicant should be removed for the good of
the service and barred from the potential of being an officer at a later
time.  The report was considered adverse and as such was referred to the
applicant for comment.
7.  The applicant responded to the adverse OER to the effect that he did
not feel that any negative actions committed during the rotation outweighed
the positive things he had done to the point of being rated below center of
mass and not being retained.  He further asserted that he had been given
permission by his commander to consume alcohol and when his commander told
him to stop he did so immediately.  He admitted that on at least one
occasion, his association with a known prostitute was improper and he took
the initiative to ensure that future incidents did not occur.  There is no
evidence in the available records to show that he ever appealed the OER to
the Officer Special Review Board (OSRB) or to the National Guard Bureau
Appeals Office.

8.  The applicant was released from active duty in April 2003 and was
returned to his PAARNG unit, where he remained until he was honorably
discharged from the National Guard on 15 October 2003 and was transferred
to the United States Army Reserve (USAR) Control Group (Reinforcement).

9.  It appears that the applicant contacted the PAARNG Inspector General’s
office to ascertain the status of his appeal and was informed in May 2004,
that attempts to locate his appeal had proved futile and that the ability
of that office to assist him had been exhausted.

10.  The applicant filed another request for assistance with the Inspector
General at the Human Resources Command in St Louis, Missouri on 12 May 2004
and was informed on 28 May 2004 that he must exhaust his remedies of
redress through the appropriate appeals process before the Inspector
General (IG) could review his case to determine if he was afforded due
process.

11.  On 8 June 2004, he applied to the DASEB to have the GOMOR either
removed from his OMPF or transferred to the restricted fiche of his OMPF.
The DASEB opined that the applicant had failed to provide evidence of a
clear and convincing nature to show that the GOMOR was untrue or unjust or
that it had served its intended purpose.  The DASEB denied his request on 7
March 2005.

12.  He again applied to the DASEB for reconsideration of his request on 6
June 2005 contending that his due process rights were violated because his
appeal of his NJP was never acted upon.  The DASEB opined that there was
sufficient evidence to show that the applicant had admitted to some of the
offenses for which he was accused and denied his request again on 27
February 2006.

13.  In the processing of this case a staff member of the Board contacted
officials at the United States Army Europe and Seventh Army Staff Judge
Advocate’s office to ascertain the status/results of the applicant’s
appeal.  Officials at that office could not locate any record of the
applicant’s appeal and thus contacted officials at the Office of the Staff
Judge Advocate of the PAARNG.  Officials at the PAARNG also could not find
a record of the applicant’s appeal.

14.  However, a staff member of the Board was able to locate the Judge
Advocate General (JAG) officer to whom the appeal was sent and that officer
confirmed that the appeal was received.  He further indicated that he was
in the process of a permanent change of station (PCS) and that the case was
transferred to another officer for action.

15.  Army Regulation 623-105 establishes the policies and procedures for
the OER system.  Paragraph 3-57 and 6-6 provide that an OER accepted by
Headquarters, Department of the Army, and included in the official record
of an officer, is presumed to be administratively correct, and to have been
prepared by the properly designated rating officials at the time of
preparation.  Requests that an accepted OER be altered, withdrawn or
replaced will not be honored.  An exception is granted only when
information which was unknown or unverified when the OER was prepared is
brought to light or verified and the information is so significant that it
would have resulted in a higher or lower evaluation, had it been known at
the time the OER was prepared.  Paragraph 3-24 provides that each report
will be an independent evaluation of the rated officer for a specific
rating period and will not refer to prior or subsequent reports.  Paragraph
3-27a provides that no reference will be made to an incomplete
investigation (formal or informal) and that references will only be made to
actions or investigations that have been processed to completion,
adjudicated and had final action taken before submitting the report to the
Department of the Army.  This restriction is intended to prevent unverified
derogatory information from being included in evaluation reports.  Each
report must stand alone.

16.  Army Regulation 600-37 prescribes policies and procedures regarding
unfavorable information considered for inclusion in official personnel
files.  It states, in pertinent part, that a letter, regardless of the
issuing authority, may be filed in the OMPF only upon the order of a
general officer or officer having general court-martial jurisdiction over
the recipient.  The direction for filing in the OMPF will be contained in
an endorsement or addendum to the letter.  However, before a letter may be
filed in the OMPF, it must be referred to the recipient concerned for
comment, it must include reference to the intended filing of the letter,
and must be signed by an officer authorized to direct such filing.

17.  Army Regulation 27-10, Military Justice, provides, in pertinent part,
that action by the superior authority on appeal will be entered in item 9,
DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).  A superior
authority will act on the appeal expeditiously and may conduct an
independent inquiry into the case, if necessary or desirable.  A timely
appeal does not terminate merely because a Soldier is discharged from the
service.  It will be processed to completion by the superior authority.

DISCUSSION AND CONCLUSIONS:

1.  An investigation was completed under the provisions of Army Regulation
15-6 on or about 30 January 2003, which opined that there was sufficient
evidence to substantiate the allegations against the applicant.

2.  On 8 February 2003, the CG informed the applicant of his rights and the
charges against him.  The applicant was also provided a GOMOR dated
8 February 2003 and was afforded 48 hours to consult with counsel and make
a decision as to whether he wanted to accept NJP or demand a trial by court-
martial.  On 20 February 2003, the applicant elected to accept NJP.

3.  On 18 February 2003, the CG imposed NJP against the applicant for one
specification of wrongfully consuming alcohol and for the wrongful
association with persons known to be prostitutes.  His punishment consisted
of a written reprimand to be filed on the applicant’s performance fiche.

4.  The applicant was issued a GOMOR dated 18 February 2003 that was
written exactly as the 8 February 2003 GOMOR and it specified that the
reprimand was administrative in nature and was not imposed as punishment
under the UCMJ.  The applicant elected to appeal the punishment and submit
additional matters in his own behalf.

5.  He submitted his appeal on 20 February 2003 and his appeal was received
through Certified Mail at the higher headquarters in Heidelberg, Germany.
A staff action summary (AE Form 1-10A) was prepared by the Command Staff
Judge Advocate’s office on 9 April 2003; however, there is no evidence that
the appeal was ever processed to completion.  The DA Form 2627 and the
GOMOR were filed in the applicant’s Official Military Personnel File (OMPF)
without any action being taken by the appeal authority.  Additionally, all
efforts by the Inspector General, on behalf of the applicant and by Staff
Judge Advocate officials on behalf of this Board have failed to produce any
evidence that his appeal was properly processed to completion.

6.  The applicant’s OER ending on 19 March 2003 clearly indicates in the
rater’s comments that the applicant was under investigation at the time the
report was prepared and opined that if the allegations were found to be
true, he should be punished to the maximum extent possible and separated
from the service.  Inasmuch as the investigation was completed on or about
30 January 2003, it is apparent that the contested OER was completed well
before the investigation was completed and before the ending date of the
report period.

7.  The applicable regulation regarding the preparation of the OER is very
clear in explaining that comments regarding incomplete investigations are
not authorized for entry on an OER.  Only actions that have processed to
completion and properly adjudicated will be entered on that form.  The
comments in question specifically state that the investigation was still on-
going and since there is no evidence that his appeal had been acted on then
or since, the actions had not been properly adjudicated.  Accordingly, the
comments on the OER regarding the uncompleted investigation were not
authorized to be entered on that report.

8.  While the Board will not attempt to ascertain any guilt or innocence in
regards to the allegations against the applicant, it is clear that the
applicant was denied his due process rights when his appeal of the NJP was
not processed to completion.  Accordingly, the NJP should be removed from
his records.

9.  Additionally, all actions that flowed from the NJP should also be
removed from his records.  The GOMOR, which specifically and incorrectly
stated it was an administrative action and was not imposed as punishment
under the UCMJ, but clearly was, should be removed from his records.

10.  The OER that reflected comments regarding an incomplete investigation
should also be removed from his records and that time should be deemed
unrated time.






BOARD VOTE:

___JS __  ___LE ___  __MF___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
removing the GOMOR dated 18 February 2003, the DA Form 2627 dated
18 February 2003, and the OER ending 19 March 2003.  Additionally, all
documents associated with those documents, to include his appeals, should
be removed from his records and the period covered by the OER should be
deemed non-rated time.




                                  ______John Slone_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005686                           |
|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          |(GRANT PLUS)                            |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |328/rem der info                        |
|1.134.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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