IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20070018192 


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, the removal of a general officer letter of reprimand (GOLOR) dated 11 July 2003, a Record of Proceedings under Section 450.1 CMVC (California Military Veterans Code) (CAL NG FORM 2627), a GOLOR dated 8 October 2003, a relief for cause Officer Evaluation Report for the period of March to October 2003 from his Official Military Personnel File (OMPF) and promotion to the rank of lieutenant colonel (LTC) in June 2004, with entitlement to all back pay and allowances and award of the Legion of Merit.   

2.  The applicant states his case through counsel. 

3.  The applicant provides his case through counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the removal of a general officer letter of reprimand (GOLOR) dated 11 July 2003, a Record of Proceedings under Section 450.1 CMVC (California Military Veterans Code) (CAL NG FORM 2627), a GOLOR dated 8 October 2003, a relief for cause (RFC) Officer Evaluation Report (OER) for the period of March to October 2003 from the applicant’s Official Military Personnel File (OMPF) and promotion to the rank of lieutenant colonel (LTC) in June 2004, with entitlement to all back pay and allowances and award of the Legion of Merit (LOM).   

2.  Counsel states, in a 49-page brief, in effect, that the GOLOR dated 11 July 2003 should be expunged because it was unnecessarily inflammatory and grossly inaccurate because he was accused of walking out of a command directed urinalysis and the applicant submitted a statement from a noncommissioned officer (NCO) supporting the applicant’s statement at the time that he knew nothing of the urinalysis.  He goes on to state that the GOLOR was inaccurate because the applicant did not threaten the officer in question as he was accused and the GOLOR amounted to the applicant being punished for trying to protect his name from false accusations.  He also states that the applicant was unjustly punished for seeking to share the truth about senior officers in the California Army National Guard and was simply being prudent when he directed that his name be removed from the electronic mail (e-mail) messages that were dispatched.  Additionally, he contends that the Army Regulation (AR) 15-6 investigation that was conducted was not conducted in accordance with the regulation and was not impartial. 

3.  Counsel continues by stating that the GOLOR that accompanied the nonjudicial punishment (NJP) for the alleged improper wear of the Expert Infantryman Badge (EIB) mentioned that the punishment was the result of “further inquiry”, which would have occurred under a commander’s inquiry, an AR15-6 investigation or a Criminal Investigation Division (CID) investigation; however, despite the command’s assertions, no such investigation actually took place.  He also states that the accusation against the applicant was false and that the orders awarding him the EIB were not falsified as the command claimed. Additionally, there was no proof that the orders were not valid orders and that the applicant knew they were not valid.  However, the applicant accepted the punishment because he was under the threat of being fired or discharged from his Active Guard Reserve (AGR) position and losing the medical benefits he needed for his wife who suffers from multiple sclerosis. He also states that the applicant’s successor-in-command agreed to set aside the punishment if the applicant agreed to deploy to Iraq, which the applicant did and the NJP was never set aside. Therefore, because the punishment and GOLOR were not based on an investigation of any sort, and could not have been supported in trial by court-martial, they should be expunged from his OMPF.

4.  Counsel goes on to state that the RFC OER should be removed because it was based on an NJP that lacked investigative support, that was signed by the applicant under questionable circumstances and that was subsequently promised to be set aside.  He further contends that because the RFC OER was based on the wear of unauthorized awards that was not properly investigated or proven, it should be expunged from his records.

5.  Counsel also states that the applicant suffered a great personal and professional blow when he was not selected for promotion in August 2005.  In addition to having his previous promotion be put on hold as he recovered from his battlefield wounds, he was prevented from taking other assignments outside of the CAARNG that would have likely resulted in his promotion.  He further states that the CAARNG itself used a promotion process radically different than that contained in Army Regulations and because of his non-promotion, the applicant was subsequently denied a LOM, which is commensurate with the retirement of an officer with the applicant’s length of quality service.  Accordingly, the Board should consider awarding the applicant the LOM for his service.      

6.  Counsel provides a 49-page brief containing arguments for each of his contentions and a two-page table of exhibits listing 78 tabs contained in his application to the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records, which appear to be somewhat incomplete, show that after serving in the United States Marine Corps for 3 years, the applicant was released from active duty (REFRAD) on 28 May 1983 and was transferred to the Marine Corps Reserve (USMCR).  He enlisted in the United States Army Reserve (USAR) on 10 November 1983 and served in the USAR until 4 June 1984, when he enlisted in the CAARNG.  He was honorably discharged from the CAARNG on 23 May 1986 for the purpose of accepting appointment as a commissioned officer.  His report of separation (NGB Form 22) does not reflect that he was awarded an EIB nor does his Personnel Qualification Record Part II (DA Form 2-1) for that period.  

2.  He was appointed as a second lieutenant in the CAARNG on 27 May 1986.  He remained in the CAARNG and was promoted to the rank of major on 5 June 1997.  He was issued his notification of eligibility for retired pay at age 60        (20-year letter) on 8 June 2001 and he branch transferred from Infantry to Transportation Corps on 26 July 2002.  

3.  On 11 July 2003, while serving on active duty in the CAARNG as an AGR major, a GOLOR was imposed against the applicant for his involvement in incidents of disrespectful behavior towards superior officers.  The imposing commander (a major general) reprimanded the applicant for displaying disrespect towards a colonel by threatening him with a civil lawsuit when he inquired into the facts surrounding the applicant’s “walkout” of a command directed urinalysis and by distributing a partially fictitious news article about a major general where he (the applicant) had inserted three inflammatory sentences into the text and made it appear as though the sentences were part of the original article.  Prior to distributing the article, he (the applicant) directed the recipient to take his name off before forwarding it and to give it widest dissemination.  The applicant acknowledged receipt of the GOMOR on 12 July 2003 and it appears that he did not submit a rebuttal to the GOLOR.  There is no evidence in the available records to show that he responded to the GOLOR or that he appealed the GOLOR to the Department of the Army Suitability Evaluation Board (DASEB).

4.  On 7 October 2003, the imposing commander imposed NJP against the applicant for wrongfully and without authority wearing the award of the EIB on his uniform.  His punishment consisted of a written reprimand and a forfeiture of one half of 1 months pay for 2 months (all but $200.00 suspended until the applicant’s retirement or 15 January 2007).  He directed that the record of NJP be filed on the applicant’s performance fiche of his OMPF.  The applicant did not appeal the punishment and there is no evidence that he sought relief from the DASEB.     

5.  On 7 October 2003, the imposing commander also directed the applicant’s commander (a brigadier general) to relieve the applicant from his position as a battalion commander and to take appropriate action to complete an OER.

6.  On 8 October 2003, the imposing officer gave the applicant a GOLOR for the unauthorized wear of the EIB on his uniform, asserting that the orders awarding the EIB were not valid official orders because the officer who signed it had never served in the National Guard or USAR and because the commands cited on the orders had never conducted EIB testing or been authorized to issue such orders. There is no evidence in the available records to show that the applicant responded to the contents of the GOLOR or that he appealed the GOLOR to DASEB.  

7.  The applicant was relieved of command on 19 October 2003 and a RFC OER was prepared on 22 November 2005.  In Part V, under Performance and Potential Evaluation, his rater gave him a rating of “Unsatisfactory Performance – Do Not Promote” and indicated in his comments that the applicant had failed in his performance of duty as a battalion commander, that he was not in compliance at all times with the professional officer standards of honor, integrity and selfless service.  He also stated that while serving as a commander, the applicant wore an unauthorized device on his uniform, misrepresenting himself and the military, and as such was relieved for cause.

8.  The applicant’s senior rater (a brigadier general) gave the applicant a “DO NOT PROMOTE” rating and stated that the applicant’s stumbling block was to place perception of worth by others ahead of his own worth to the command.  He failed to accept himself as he is and sought to enhance others perception of him by wrongfully wearing unauthorized awards.  He should not be promoted to the grade of LTC.  The report was considered adverse and as such was referred to the applicant for comment; however, there no evidence to show that the applicant submitted any rebuttal comments regarding the RFC OER.  Additionally, there is no evidence in the available records to show that he appealed the OER to the Officer Special Review Board (OSRB).  The applicant’s records do show that he has successfully appealed previous OERs to the OSRB.

9.  On 19 February 2004, a memorandum was dispatched from the Human Resources Command – St. Louis titled “Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty”.  The memorandum informed the applicant that he had been selected for promotion by the Reserve Components LTC Promotion Selection Board that convened on 19 September 2003 and that he was to be promoted effective 4 June 2004.

10.  On 3 March 2004, the CAARNG dispatched a memorandum to the applicant informing him of his options in regards to his selection for promotion to the rank of LTC.  He was informed that he could sign a request for delay of promotion in order to maintain his eligibility for promotion or that he could submit his letter of resignation from the CAARNG and request transfer to the USAR in order to accept the promotion.

11.  On the same day, the applicant signed a Notification of Involuntary Delay requesting a delay in promotion because he was serving on active duty in the AGR Program.  He also acknowledged that he understood that if he was released or removed from the AGR Program and had not been previously promoted, he must be promoted in a position vacancy, be transferred to the USAR to accept promotion or decline the promotion, which would be considered a non-selection for promotion.

12.  The applicant deployed to Kuwait and Iraq in support of Operation Iraqi Freedom on 30 October 2004 and continued to serve there until he was wounded in action on 29 January 2005 and was subsequently medically evacuated to Walter Reed Army Medical Center (WRAMC) in Washington D.C. and was subsequently assigned to the medical holding detachment for completion of medical care and processing.  He was awarded the Purple Heart on 14 February 2005.

13.  On 5 September 2005, the applicant was honorably released from active duty and was transferred back to the CAARNG after having served 10 months and 9 days of active service during his deployment.           
     
14.  Although not contained in the available records, it appears that on 23 January 2006, the CAARNG recommended that the applicant be removed from the LTC promotion list, contending that his records were not complete when reviewed by the 2003 LTC selection board and that his records did not contain the flagging action, the RFC OER, the Record of NJP and his GOLORs.  The applicant’s civilian counsel submitted a rebuttal in behalf of the applicant to the Promotion Review Board which apparently removed his name from the LTC Promotion Selection List.  However, there are no documents in his records to reflect such and the applicant has not provided documents from the Department to confirm that action was taken.

15.  However, on 31 August 2006, the applicant was honorably discharged from the CAARNG and was placed on the Retired List in the rank of major, effective 1 September 2006.  He had served 20 years and 8 days of total active service and had 26 years, 3 months and 5 days of service for pay purposes.

16.  A review of the two orders contained in the applicant’s OMPF awarding him the EIB, reveal orders that contain the same information but typed in different fonts and the signatures are not identical.  Also the signature blocks differ in that one shows the authenticating official as a CAARNG LTC and the other shows him as a USAR LTC. 

17.  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.

18.  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.

19.  Army Regulation 27-10 provides, in pertinent part, that in regards to NJP, the Soldier will be advised of their right to consult with counsel and the location of counsel.  For the purpose of NJP, counsel means a judge advocate, a Department of the Army civilian attorney or an officer who is a member of the bar of a Federal court or of the highest court of a State.  In regards to civilian counsel related to trial by courts-martial, it provides that the accused has the right to be represented in his or her defense before a general or special court-martial or at an investigation under Article 32, UCMJ, by civilian counsel, if provided by the accused at no expense to the government.

20.  Army Regulation 27-10, Military Justice, provides, in pertinent part, that nonjudicial punishment is imposed to correct misconduct in violation of the Uniform Code of Military Justice (UCMJ).  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.  Included among nonpunitive measures are administrative reprimands and admonitions.  

21.  Army Regulation 135-155 provides policy and procedures for the selection and promotion of commissioned officers of the USAR.  It provides, in pertinent part, that AGR officers who have been selected for promotion and are not assigned to a position calling for a higher grade will remain on the promotion list and serve on active duty in the AGR program until they are removed from the promotion list under paragraph 3-13, or promoted to a higher grade following reassignment to an AGR position calling for a higher grade or promoted to a higher grade following REFRAD.  Paragraph 3-13 provides, in pertinent part, that commanders and the commanding general (CG), Human Resource Command (HRC) will continuously review promotion list to ensure that no officer is promoted who had become mentally, physically, morally or professionally disqualified after being selected.  Commanders and the CG, HRC may recommend removal for any adverse documentation contained in the OMPF. 

22.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the Legion of Merit is awarded to individuals who distinguish themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements.  The performance must merit recognition of key individuals for service rendered in a clearly exceptional manner.  Performance of duties normal to the grade, branch, specialty or assignment and experience of an individual is not an adequate basis for this award.  In peacetime, service should be in the nature of a special requirement or an extremely difficult duty performed in an unprecedented and clearly exceptional manner.  However, justification may accrue by virtue of exceptionally meritorious service in a succession of important positions.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations, reconsideration, nor for upgrading to a more prestigious award.

23.  Army Regulation 600-8-22 also provides, in pertinent part, that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having awards approval authority.   

24.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures for awards, in pertinent part, paragraph 8-8 provides for award of the Expert Infantryman Badge.  Award of the Expert Infantryman Badge requires that an individual must have satisfactorily completed the prescribed proficiency tests while assigned or attached to an infantry unit of at least battalion size.  To be eligible for testing and award of the Expert Infantryman Badge, a Soldier must be in an active Army status and must have an infantry or special forces specialty.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the NJP and two GOLORs were unjustly imposed against him and should be removed from his OMPF has been noted and found to lack merit.  While the applicant has provided argument to the effect that he was not guilty of the offenses for which he was accused, there is sufficient evidence to establish that the imposing commander had sufficient evidence to reasonably believe that the applicant had committed the offenses for which he was charged.      

2.  It is also noted that not only did the applicant not rebut or appeal the NJP and GOLORs at the time he received them, he also did not appeal to the DASEB to have them removed from his OMPF while he was still serving in an active status.  
3.  Although the applicant has provided evidence to show that a succeeding commander agreed to set aside the punishment after completing a successful tour in Iraq, he has failed to provide evidence to show that he attempted to have the punishment set aside after his return from Iraq or that the commander in question was in a position at that time to set it aside.  Additionally, the fact that punishment is set aside does not constitute a basis to remove a record of NJP from an individual’s record.  Accordingly, there appears to be no basis to remove the record of NJP from the applicant’s OMPF. 

4.  Although the applicant asserts that the orders awarding him the EIB are valid orders, a review of the two orders contained in his OMPF leads even the most inexperienced person to question the validity of the orders.  While the applicant contends that there was no investigation conducted into this matter, it appears very unlikely that the imposing commander would accuse and punish him without some sort of corroboration of the circumstances in his case.  Lacking evidence to the contrary, administrative regularity is presumed.  Additionally, his records at the time of his accepting a commission in the CAARNG do not reflect that he was awarded the EIB.

5.  The applicant’s contention that he was unjustly relieved for cause and received a RFC OER based solely on the issue of the EIB has also been noted and found to lack merit.  The applicant was serving as a commander at the time it was discovered that he was wearing questionable awards and the actions by his commander were not only logical, considering that the applicant’s honesty and integrity were called in to question, but also necessary to maintain good order and discipline in the command.  Unit commanders are not exempt from punishment when they violate the Army’s Core Values any more than any other member of a unit.  Additionally, the applicant did not appeal the report while he was on an active status and he has failed to provide sufficient evidence to establish that the report does not reflect the rating officials considered opinion of his performance and potential during the rated period.  Accordingly, there appears to be no basis to remove the report from his OMPF.

6.  The applicant’s contention that he was unjustly denied promotion to the rank of LTC and that he was unjustly removed from the promotion list has been noted and also found to lack merit.  Not only has the applicant provided insufficient  evidence regarding his removal from the promotion list, he has also failed to show through the evidence submitted with his application and the evidence of record that he met all of the qualifications for promotion prior to his retirement.

7.  While the Board does not have the benefit of reviewing the actions regarding his alleged removal from the promotion list, it is not an uncommon occurrence for officers to be removed from a promotion list when it is discovered that adverse information is filed in an officer’s record that was not viewed by a promotion board.  Accordingly, there is no basis to grant the applicant’s request for promotion.
8.  The applicant’s contention that he should have received a Legion of Merit (LOM) upon his retirement has been noted; however, there are no “automatic entitlements” to award of the LOM based on retirement.  While individuals approaching retirement may be considered for an appropriate decoration based on his or her grade, years of service, degree of responsibility, the ultimate decision as to whether an individual should receive an award and the level of the award rests with the awards approval authority.  While the applicant contends that he was denied an award of the LOM because of his non-promotion, he has not provided evidence to show that such was the case and his records contain no record of his being denied a recommended award or that an award was unjustly downgraded.  Accordingly, there is no basis to award him a LOM at this time.

9.  The applicant has gone to great lengths in his application to the Board to assert that he was innocent of any wrongdoing and that he accepted the punishments he received because he feared reprisal by commanders at the highest level of the CAARNG that would result in his being REFRAD and causing him to lose the medical benefits he needed for his wife’s care.  However, as a commissioned officer, he had a responsibility to report any violations of his rights to the appropriate authorities, such as the Inspector General, without fear of reprisal.  However, he took no such action at the time and now comes to the Board with insufficient evidence to establish the conspiracy he contends existed at the time was in fact true and was designed to control his actions.  Based on the available evidence in this case, there simply is not enough evidence to show that the applicant was innocent of any wrongdoing for which he was accused.  Accordingly, there appears to be no basis to grant his requests.

10.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
             
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.




      ___        XXX                ___
                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)                                         AR20070018192



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ABCMR Record of Proceedings (cont)                                         AR20070018192



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