IN THE CASE OF:	

		BOARD DATE:	  24 November 2008

		DOCKET NUMBER:  AR20070013937 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of a General Officer Memorandum of Reprimand (GOMOR) from his official military personnel file (OMPF) and to restore him to the position he would have been in if it had not been for the GOMOR.

2.  The applicant defers his statement to counsel.

3.  Counsel states the applicant, now retired, served in the Army with great distinction for over 30 years.  Counsel states the applicant received a GOMOR due to false allegations of an embittered and failed officer whom the applicant had disciplined years prior and a Department of the Army Inspector General (DAIG) investigation characterized by egregious procedural violations, gross factual inaccuracies, and a seemingly ill-motive.

4.  Counsel states that on 22 September 1999, the applicant's name was withheld from the Brigadier General Promotion List by the Secretary of the Army prior to his being identified as a subject or suspect of any active investigation.

5.  Counsel states the applicant was deprived of his fundamental procedural rights under Army regulations and federal statue and that he was not informed in writing of the allegations against him nor of the scope of and the authority for the DAIG investigation.

6.  Counsel states the Army violated the applicant's procedural right under Army Regulation 20-1 (Inspector General Activities and Procedures) by failing to inform him of the allegations against him in a timely manner.

7.  Counsel states the Army violated the applicant's procedural rights under 
Army Regulation 600-37 (Unfavorable Information) by providing him only with a highly redacted copy of the DAIG Report of Investigation (ROI).

8.  Counsel states the Army had no basis for delaying the applicant's promotion and failed to resolve the applicant's promotion status within the 18-month time period provided for in Title 10, United States Code, Section 14311.

9.  Counsel states the Army failed to notify the applicant in writing of its decision to delay his promotion and provide him an opportunity to respond in writing to the Secretary of the Army.

10.  Counsel states that according to the DAIG investigation the applicant acted negligently in the performance of his duties as Contracting Officer’s Technical Representative (COTR) on Task Orders involving service by SY Tech.  Counsel states the applicant was not designated as COTR on the relevant Task Orders and he had never been instructed in the duties of a COTR or trained in the execution of those duties. 

11.  Counsel provides in support of the applicant's application a 52 page brief with 39 tabulated enclosures and a redacted result of a DAIG Report of Investigation ROI.

CONSIDERATION OF EVIDENCE:

1.  On 1 June 1999, the DAIG received an Inspector General, Department of Defense Hotline referral alleging misconduct on the part of the applicant pertaining to the creation of a task order to support a requirement at the U.S. Army Reserve Command, Atlanta, Georgia, and funding of the task order with the Chief, Army Reserve withholding funds prior to [redacted] retirement.  It was recommended the allegations against the applicant be referred to a preliminary inquiry.  Department of Defense (DOD) Regulation 5500.7R, Chapter 10, paragraph 201c(1), stated if a violation of 18 United States Code (USC) 207 was suspected, the matter was required to be reported to the Army Criminal Investigation Division (CID).  Accordingly the allegations were referred to the CID on 18 August 1999.

2.  The June 1999 USAR General Officer Promotion Board, Recommended List for Promotion to Brigadier General in the United States Army Reserve (Tab 27 to Counsel's brief) lists the applicant as being recommended for promotion to brigadier general.

3.  A Memorandum from the Office of the Chief of Staff, dated 10 September 1999, (Tab 28 to Counsel's brief) to the Secretary of the Army noted the applicant was the subject of an ongoing DAIG preliminary inquiry into an allegation that he improperly directed the funding and approval of an inappropriate task order.  The Office of the Chief of Staff recommended the promotion board report and recommendations pertaining to the applicant be withheld.

4.  On 7 October 1999, the Deputy Secretary of Defense withheld the applicant's name from the brigadier general nomination scroll pursuant to his authority under Department of Defense Instruction (DODI) 1320.4.

5.  On 9 March 2000, the CID referred the allegations pertaining to the applicant to the U.S. Army Inspector General Agency for appropriate action.

6.  On 7 February 2001, the Office of the Vice Chief of Staff, directed the DAIG to conduct an investigation into the alleged improprieties by a senior official assigned to the USAR.

7.  On 23 April 2001 the applicant was interviewed by investigators from the DAIG.  The applicant was informed that the DAIG is an impartial fact-finder.  The applicant was advised he was suspected of performing his duties as a COTR in a negligent manner and that he violated standards of ethical conduct in contracting and related activities pertaining to SY Technology, Incorporated.

8.  During this interview, the applicant stated "I was the on-the-ground, if you want to use the words, COTR."  The applicant further stated, "Whether or not I was trained for it properly and whether or not I was appointed in writing, the answer is no, I was never trained and no, I was never appointed.  But I certainly fulfilled the function."

9.  The DAIG ROI Executive Summary, dated 9 July 2001, substantiated the allegation that the applicant failed to properly perform his duties as a COTR.  The Executive Summary reports the applicant had testified he knew the duties of a COTR and performed the function.  The summary reports the applicant's failure to properly perform his COTR duties and he had a direct and measurable effect on the contract.  The summary further reports the applicant permitted the contractor to draft its own performance appraisal, which compromised the integrity of the awards fee board system.


10.  On 12 July 2001, the United States Army Inspector General Agency notified the applicant that the investigation into allegations against him had been completed.  The investigation concluded the allegation that the applicant failed to properly perform his duties as a COTR was substantiated.

11.  On 19 October 2001, the Vice Chief of Staff issued the applicant a Memorandum of Reprimand (MOR).  The Vice Chief of Staff indicated he approved the DAIG ROI that substantiated an allegation that the applicant had failed to perform his duties properly as a COTR.  The Vice Chief of Staff indicated the applicant was reprimanded for his negligence, which gave rise to an appearance that his personal interests clouded his professional diligence and judgment.  The Vice Chief of Staff further indicated the applicant's failure to perform his COTR duties properly may have resulted in the award of fees that did not accurately reflect the contractor's performance and created a perception of impropriety and misdirected loyalty.

12.  The Vice Chief of Staff advised the applicant the MOR was an administrative action and was not punishment under the Uniform Code of Military Justice.  The Vice Chief of Staff further advised the applicant that he intended to file the MOR in the applicant's official military personnel file and that the applicant had 14 days to submit any matters he deemed appropriate before the Vice Chief of Staff made a final decision.

13.  On 5 April 2002, the applicant submitted a detailed six page letter of rebuttal, with 11 enclosures, to the Vice Chief of Staff.  The applicant stated there were numerous procedural and factual errors in the DAIG investigation.

14.  On 31 May 2002, the Vice Chief of Staff notified the applicant that the nature of his misconduct and his rebuttal to the MOR were carefully considered.  The Vice Chief of Staff directed that the MOR be filed in the applicant's OMPF along with the applicant's six-page response, with attachments.

15.  A letter, dated 15 July 2002, from the Office of the Vice Chief of Staff, notified the applicant he was being referred to a Promotion Review Board (PRB) to determine whether he should be retained or removed from the June 1999 Army Reserve General Officer Promotion Selection List based on a GOMOR.

16.  Counsel stated the applicant submitted a request for voluntary retirement 
on 15 July 2002.

17.  On 1 February 2003, the applicant was transferred to the Retired Reserve.

18.  On 18 June 2004, the applicant submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) to remove the GOMOR from his OMPF.

19.  On 8 November 2004, after a careful consideration and a thorough evaluation of his record the DASEB voted to deny the applicant's request for removal of the GOMOR from his OMPF.  

20.  An advisory opinion was received from The Office of the Chief of Staff that provided a brief summary of events in the applicant's case.  The opinion provides that it was the decision of the then-Secretary of the Army to hold the applicant nomination in abeyance pending the outcome of a DAIG investigation into an allegation of impropriety.  The opinion further provides that upon completion of the DAIG investigation the applicant received a MOR and an Adverse Panel subsequently recommended he appear before a PRB.  However, the applicant submitted a request for release from his assignment and placement in the Retired Reserve in lieu of being referred to the PRB.  Based on the applicant's approved request and transfer to the Retired Reserve he was removed from the 1999 General Officer Promotion Selection Board (GOPSB) list and a PRB did not review his promotion status.

21.  The applicant's counsel submitted a response to The Office of the Chief of Staff advisory opinion wherein he restates his argument that the applicant's rights were violated in the processing of the GOMR he received and the withholding of his promotion to brigadier general.

22.  Army Regulation 20-1 provides, in paragraph 8-6 (Unfavorable information), that  the IG will orally notify the person concerned of the allegations and interview the subject or suspect before completing the DAIG inquiry or investigation.  

23.  Army Regulation 600-37 provides that unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement. This statement may include evidence that rebuts, explains, or mitigates the unfavorable information. 

24.  Section 14311 of Title 10 USC provides that the appointment of an officer to a higher grade may be delayed if an investigation is being conducted to determine whether disciplinary action of any kind should be brought against the officer.  Section 14311 further provides that except for court action a promotion may not be delayed more than 18 months after the date on which the officer would otherwise have been promoted.
25.  Army Regulation 600-8-29 (Officer Promotions) provides, in paragraph 8-1 (General), that a report of a selection board exists after a promotion board issues a signed board report.  The board report becomes a promotion list after approval by the President or his designee.

26.  Paragraph 7-2a of Army Regulation 600-37 provides 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. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 

27.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  At the time the applicant's name was withheld from the promotion list a preliminary inquiry was already being conducted into allegations of the applicant's possible improprieties.

2.  Counsel contends the applicant's rights under Army Regulation 20-1 to be notified of the allegations and to be interviewed prior to completion of the DAIG investigation were violated.  The applicant was interviewed and informed of the allegations against him on 23 April 2001.  The DAIG specifically informed the applicant that he was being investigated concerning his performance as the COTR for a contract with SY Technology.  During the course of the interview, the DAIG questioned the applicant in detail concerning his involvement in the contract and his dealings with his former Chief of the Army Reserve, who went to work for SY Technology after his retirement.  The applicant was therefore clearly on notice concerning the allegations against him.  The completed DAIG ROI is dated 9 July 2001.  Therefore, the applicant was notified of the allegations against him prior to the completion of the investigation.

3.  Counsel contends the applicant's procedural rights under Army Regulation 600-37 were violated.  The GOMOR is dated 19 October 2001 and notified the applicant of the Vice Chief of Staff's intent to file the reprimand in his OMPF.  The GOMOR also notified the applicant he could submit any matters he deemed appropriate within 14 days of receipt of the GOMOR.  The applicant's detailed six page letter of rebuttal, with 11 enclosures, is dated 5 April 2002.  Based on the details the applicant provided in his letter of rebuttal it is reasonable to conclude that he reviewed the documentation that served as the basis for the GOMOR.  

4.  The applicant contends that he was not designated the COTR.  However, during the DAIG investigation, the applicant stated to the DAIG investigator that although he was not trained for or appointed in writing as COTR, he was fulfilling that function.  The GOMOR specifically reprimands the applicant for failure to perform that function through negligence.  The Vice Chief of Staff of the Army and the DAIG report and investigation before him, considered the applicant's lengthy rebuttal, and reasonably concluded that at best, the applicant was negligent in the performance of his duties regarding the contract in question.  The general officer imposing the GOMOR, after reading the applicant's detailed response, concluded that the evidence still showed the applicant's action created an appearance of impropriety and therefore warranted filing of the GOMOR in the applicant's OMPF.

5.  A GOMOR is an administrative matter, not judicial, and is not subject to the rules of evidence applicable to trial by court-martial.  The officer issuing the reprimand and the officer approving the filing of the reprimand must only believe the recipient of the GOMOR is guilty of the infraction in question.  There are no errors in substance or process with respect to the issuance of the applicant's GOMOR.  Despite the applicant's arguments, he has established no basis for removal of the GOMOR from his record.  

6.  Counsel contends the Army failed to resolve the applicant's promotion status within the 18-month time period provided for in Title 10 USC Section 14311.  Although the applicant's name appeared on the Promotion Selection Board Recommended List, his name was withdrawn prior to submission of the list to the President for approval.  Therefore, the applicant's name did not appear on the promotion list approved by the President.  Therefore, there is no means by which to establish the date the applicant would have been promoted.

7.  The applicant's argument that as a matter of law he had to be promoted no later than eighteen months after what would otherwise have been his promotion date is based on an incorrect reading of the applicable statue.  The Secretary of the Army withheld the applicant's name from the report of the June 1999 USAR General Officer Promotion Board.  The Secretary of Defense withheld the applicant's name from the nomination scroll and his name was not sent to the President for approval and nomination to the Senate.  Army Regulation 600-8-29 provides that a board report does not become a promotion list until after approval by the President.  Therefore, the applicant's name was never on the promotion list approved by the President or submitted to the Senate for confirmation for approval.  The provisions of Title 10 Section 14311 only apply in those cases where a member has received Presidential approval and is at least on a promotion list and subject to Senate confirmation.

8.  The applicant, of his own volition, terminated his due process when he chose to be transferred to the Retired Reserve without waiting for the results of a Promotion Review Board.

9.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _ X  _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070013937



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ABCMR Record of Proceedings (cont)                                         AR20070013937



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