IN THE CASE OF:	  

		BOARD DATE:	  	   6 January 2009

		DOCKET NUMBER:  AR20080000165 


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, that a general officer memorandum of reprimand (GOMOR) that was issued to him in November 2006 with all supporting documents be expunged from his Official Military Personnel File (OMPF).  He also request that his rank of colonel (COL)/pay grade O-6 and pension be restored.

2.  The applicant essentially states that the charges of the GOMOR are false and the GOMOR in his OMPF should be expunged.  The GOMOR was not based on evidence, but rather a very nebulous perception of impropriety.  Despite actual evidence to the contrary, the adverse action resulted in him being administratively retired in the rank of lieutenant colonel (LTC)/pay grade O-5.  The charges were unfounded, unjust, and are not supported by the preponderance of evidence.  The allegation of misconduct is clearly refuted by the actual evidence that he has provided.  The administrative reduction is based on this unjust GOMOR.  He believes that the Army Grade Determination Review Board (AGDRB) also erred.  Under the provisions of Army Regulation 15-80 (AGDRB and Grade Determinations), the determination is based on the Soldier’s overall performance in the rank last held.  He adds that not only is he innocent of the charges set forth on the GOMOR, he has provided ample evidence to support his consistently outstanding performance throughout his 3 1/2 year period as a colonel.

3.  The applicant provides a brief that consists of a petition to the President of the Army Board for Correction of Military Records (ABCMR); a memorandum from a Retirement Services Officer; two copies of retirement orders; a copy of the GOMOR dated 6 November 2006; a negotiated settlement agreement dated 8 June 2007; 10 Officer Evaluation Reports (OERs) and two Academic Evaluation Reports covering the period from 12 January 1996 through 6 June 2006; 26 letters, electronic mail messages, and sworn statements of support; seven awards and award recommendations that include the Meritorious Service Medal for the period 3 June 1994 to 28 May 1996, the Meritorious Service Medal for the period 21 June 1996 to 30 May 1998, the Defense Meritorious Service Medal for the period 18 May 1999 to 1 September 1999, the Meritorious Service Medal for the period 30 June 1998 to 24 May 2000, the Defense Superior Service Medal for the period June 2003 through June 2005, the Joint Service Commendation Medal for the period 15 December 2003 to 15 May 2004, and a recommendation for the Legion of Merit dated 12 March 2007; the applicant's professional background; his War College Academic Evaluation Report; and his Officer Record Brief (ORB) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was appointed as a second lieutenant in the Regular Army on 27 May 1981 and continuously served on active duty for over 25 years, attaining the rank and pay grade of COL/O-6 on 1 December 2003.

2.  The applicant’s records show he was awarded the Defense Superior Service Medal, the Defense Meritorious Service Medal, the Meritorious Service Medal (5th award), the Joint Service Commendation Medal, the Army Commendation Medal (4th award), the Army Achievement Medal, the Joint Meritorious Unit Award, the National Defense Service Medal (2nd award), the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, the Korean Defense Service Medal, the Kosovo Campaign Medal with bronze service star, the Iraq Campaign Medal with bronze service star, the Army Service Ribbon, the Overseas Service Ribbon (3rd award), and the Parachutist Badge.

3.  On 8 August 2006, an informal investigation was initiated against the applicant based on an anonymous allegation of adultery between the applicant and Ms. A____ A____, a GS-11 military technician who is also a master sergeant in the United States Army Reserve.

4.  On 10 August 2006, Colonel A____ was appointed as the Investigating Officer (IO) to investigate the anonymous allegation, report the findings, and make a recommendations to the Commanding General (CG).

5.  On 31 August 2006, the IO submitted his findings and recommendations to the Staff Judge Advocate (SJA) for legal review.  The IO found, in part, that the allegations covered the period from 15 March 2006 (when Ms. A___ was assigned the room across from the applicant's room while on temporary duty and was seen leaving the applicant's room at 0037 hours on 16 March 2006) to the present.

6.  On 11 September 2006, the SJA reviewed the IO's findings and recommendations and found the IO's findings and recommendations legally sufficient.  The findings and recommendations were submitted to the CG.

7.  On 15 September 2006, after reviewing the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation of the applicant, the CG approved the IO's findings and recommendations and notified the applicant of the proposed adverse action against him as a result of the investigation.  In the GOMOR, the applicant was informed that his abusive behavior and conduct were unbecoming an officer and a gentleman.  The applicant compromised his character and created a perception of impropriety.  This caused others to believe that he was engaged in an inappropriate relationship with a civilian employee.  The evidence further indicates that the applicant misused his government cellular telephone, misused his office, created a hostile work environment, and traveled at government expense for personal reasons.  Finally, and most egregious, the applicant appeared to have intimidated subordinates not to complain to the Inspector General or other similar activities prior to utilizing the chain of command.  The applicant’s effort to insert himself into a reporting or complaint process he had no business interfering with was without question abhorrent.  He betrayed the oath of office.  His actions were prejudicial to good order and discipline and brought discredit upon the U.S. Army. The applicant’s conduct raised serious questions concerning his judgment, his integrity, and self-discipline; his action was found to be inexcusable and disgraceful.  The CG finally added that the reprimand was imposed as an administrative measure under the provision of Army Regulation 600-37 (Unfavorable Information), not as punishment under Article 15 of the Uniform Code of Military Justice, and the GOMOR would be filed in his OMPF.  The applicant was also informed that he had 7 calendar days from receipt of this notice to reply.

8.  On 18 September 2006, the applicant acknowledged receipt of this GOMOR and acknowledged that he had read and understood the unfavorable information presented against him.  The applicant formally requested a delay, and the request was approved.

9.  On 30 September 2006, the applicant formally requested an additional 10-day delay; however, he was only approved an additional 5 days, allowing the applicant until 9 October 2006 to prepare matters and have those matters submitted to his headquarters by 11 October 2006.

10.  On 5 October 2006, the applicant submitted an extensive rebuttal which included a memorandum to his congressman, one from his legal advisor, and a memorandum from his wife, in addition to 31 exhibits.  The rebuttal stated, in effect, that he was totally innocent of the allegations and subsequent findings as set forth in the investigation.  He apologized for the length of his document; however, he believed it was necessary to successfully refute each finding, as well as the allegations upon which they were based.  He stated that the investigation conducted by the IO was conducted very hastily and even shoddily. The IO was unable to provide one shred of credible or reliable evidence upon which to base his findings and subsequent recommendations.  The IO used, almost exclusively, the testimony of a very few from within the command to draw his hasty conclusions.  The very small group consisted of individuals who had serious bias and harbored obvious motives against him.  The tiny group consisted of at least two Soldiers who were fired for poor performance and one self-admitted liar.  The applicant believes that the findings were inaccurate and were based solely on rumors, hearsay, and circumstantial evidence, and some were based on admitted lies.  In summary he states that he was innocent of any and all charges.  As such, he respectfully requested that the charges and findings be dismissed.  Furthermore, the applicant requested that he be reinstated to his duties as Chief of Staff.

11.  On 16 October 2006, the applicant was provided additional time for rebuttal due to an administrative oversight.  On 23 October 2006, the applicant submitted an addendum to his rebuttal to address the evidence contained in an electronic mail message.

12.  On 1 November 2006, the CG hosted the applicant and his legal counsel in his office to provide them the opportunity for any verbal rebuttal they liked.

13.  On 6 November 2006, the CG decided, after reviewing the applicant's rebuttal to the GOMOR and after meeting with the applicant and his counsel, to amend the original GOMOR and provide the applicant an additional opportunity to provide information in response to the amended GOMOR prior to making any filing determination.  The CG gave the applicant 7 days from receipt of the reprimand to do so.

14.  On 13 November 2006, the applicant submitted a rebuttal to the amended GOMOR.  In his statement, the applicant essentially states that he is completely innocent of any and all charges as set forth in the investigation.  He was dismayed that the charges were not dismissed based on the facts discussed in both the rebuttal as well as the substantial administrative and legal errors and omissions made on the part of the IO.  He adds that to think his distinguished career of almost 26 years can be utterly destroyed by hurtful unsubstantiated lies is very distressing indeed.  The applicant adds that the IO failed to provide any credible evidence to support the findings and the SJA, though knowledgeable, merely morphed the charges.  With respect, the amended GOMOR did not appear to take into consideration any of the matters thoroughly discussed and refuted in the extensive rebuttal.  He adds that he was still reprimanded for conduct unbecoming an officer based on a perception of impropriety.  He fails to see where the 1st Army SJA reviewed his rebuttal, and the IO conducted a very hasty and shoddy investigation.  The IO was unable to provide one shred of credible reliable evidence upon which to base his findings and subsequent recommendations.  He reiterates that he did not misuse the government telephone or his office, nor did he create a hostile work environment or travel at government expense for personal reasons.  In fact, when queried, the SJA did not even mention a hostile work environment or misuse.  He did not intimidate subordinates and he did nothing to betray his oath of office or bring discredit upon the U.S. Army.  He finally states that he respectfully requested reconsideration of the matter of the GOMOR based on the actual greater weight of evidence.  He implored the dismissal of the false charges against him and restoration of his dignity.

15.  On 15 November 2006, the CG directed that the GOMOR be filed in the performance portion of the applicant's OMPF.  On the same day, the applicant submitted a voluntary retirement application.

16.  On 18 February 2007, a copy of the applicant's retirement application and ORB were sent to the AGDRB due to the adverse documents posted in the applicant's OMPF.  The applicant was informed that he was not permitted to appear before the AGDRB; however, he could submit any written material that he wished for consideration.  The applicant acknowledged that he had been advised that his OPMF would be reviewed by the AGDRB for a retired grade.  He further acknowledged that he had 30 days from receipt of this notification to complete the review of his records.  The applicant signed the acknowledgement document and indicated that he would submit written material for the AGDRB to consider.

17.  On 24 April 2007, the AGDRB convened, and after reviewing the applicant's case and the additional documents submitted by the applicant, the AGDRB recommended that the applicant be retired in the grade of O-5.  On 7 May 2007, the Acting Deputy Assistant Secretary of the Army (DASA) for Review Boards (RB) approved the recommendations of the AGDRB.
18.  On 26 June 2007, Major General (MG) B____, the applicant's immediate supervisor at the time of the investigation, sent a memorandum to the CG who issued the GOMOR.  He respectfully submitted the following input for the CG's consideration in the matter of the GOMOR issued to the applicant and the letter of support that the CG was considering providing to the applicant for an appeal of the GOMOR which contributed to an unfavorable retirement grade.  He stated, in effect, that he believed that the AGDRB erred in the applicant's grade determination for the applicant's retirement grade.  He believes that the informal investigation had a number of holes or unanswered questions; he adds that he was aware of the West Point trip that the applicant took and he was aware that the applicant's son was entering West Point at the same time.  At no time did he question the propriety of this trip.  MG B____ adds that he was unaware of any allegation of fraternization or inappropriate relationship and found such actions completely out of character.  The applicant's chosen method of communication with the staff was often characterized as demanding and direct.  Regarding the applicant inserting himself into a reporting or complaint process, MG B____ stated that the applicant had not been informed of a pending investigation.  While the applicant's intent with his staff discussion did not appear to match its effect, and was probably ill advised, it was MG B____'s assessment that it was not the applicant's intent to interfere with an investigation that had not yet taken place. MG B____, as stated earlier, believes that there were a number of holes or unanswered questions in the investigation from his perspective, which he knows that the CG took into consideration when issuing a revised GOMOR to the applicant.  The ultimate determination by the AGDRB that the applicant be retired as an LTC is not proportional to anything contained within the GOMOR.  MG B____ believes that the final outcome was not the CG's intention when the GOMOR was issued given the applicant's 26 years of dedicated service to our nation and the applicant's accomplishments during his tenure with the 75th Division, which were considerable.  MG B____ wanted the CG's support for the applicant's appeal of the GOMOR and ultimate retirement in pay grade O-6.

19.  On 30 June 2007, the applicant was honorably retired in pay grade O-6 under the provision of Army Regulation 600-8-24 (Officer Transfers and Discharges) for sufficient service for retirement.  He served a total of 26 years, 1 month, and 4 days of creditable active duty service.

20.  On 20 August 2007, a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued to the applicant changing his Retired List grade to pay grade O-5.

21.  On 23 August 2007, the CG, in a memorandum for the President of the ABCMR, petitioned the ABCMR to take appropriate action and retire the applicant in the grade of COL/pay grade O-6.  He adds that the purpose of the reprimand was to ensure that the applicant was not promoted.  He did not intend for the reprimand to adversely impact the applicant's retirement grade.  Had he believed his misconduct warranted such severe action, he would have pursued more severe punishment himself.

22.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

23.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records), Table 2-1 (Composition of the OMPF), provides, in pertinent part, that administrative letters of reprimand, admonitions, censures of a non-punitive nature, referral correspondence, and the member's reply will be filed in the performance (Commendatory and Discipline) section of the OMPF, if the provisions of Army Regulation 600-37 have been complied with.

24.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 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.  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.

25.  Army Regulation 15-80 governs the actions and composition of the AGDRB. The AGDRB determines or recommends the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability.

26.  Paragraph 4-1 of Army Regulation 15-80 states, in pertinent part, that an officer is not automatically entitled to retire in the highest grade served on active duty.  Instead, an officer is retired in the highest grade served on active duty satisfactorily, as determined by the Secretary of the Army or the Secretary’s designee.  For officers below the grade of brigadier general, the AGDRB will recommend to the DASA (Review Boards) for final determination, the highest grade in which an officer has served satisfactorily.  To ensure entitlement to retirement at the appropriate grade, records are screened to identify any information since last promotion that substantiates the existence of adverse findings, conclusions from officially documented investigations, proceedings, or inquiries.  If such documentation is discovered, the record must be referred to the AGDRB for review.  The AGDRB recommendation is purely advisory, and the Secretary of the Army or the Secretary’s designee is not bound by that recommendation.

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.  This 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.  The applicant's request that the GOMOR filed in his OMPF be expunged and that his rank and pension be restored were carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant was suspected of having an inappropriate relationship with a civilian subordinate beginning in March 2006,  26 months after his promotion to COL.  Accordingly, an IO was appointed to investigate the allegations and produce a report.  The IO submitted his recommendations to the CG.  The CG reviewed the investigation, amended the GOMOR, and determined that the applicant's actions warranted an administrative punishment.  The applicant was subsequently given a GOMOR, but only after the CG met for a period of time with the applicant and his counsel did the CG direct the GOMOR be filed in the performance section of the applicant's OMPF.  The evidence of record also shows that the applicant was afforded the opportunity to submit rebuttals to the GOMOR with the assistance of counsel.  All requirements of law and regulation were followed throughout the process and the applicant's rights were not violated.

3.  The applicant also requested restoration of his rank and pension.  The evidence of record shows that when the GOMOR was placed in the applicant's OPMF, the applicant voluntarily submitted his retirement application.  By regulation, a copy of his retirement application and his ORB were sent to the AGDRB due to the adverse documents posted in his OMPF.  The applicant respectfully submitted documents for the AGDRB's consideration.  On 24 April 2007, the AGDRB, after reviewing the voluntary retirement packet and other documents submitted by the applicant, recommended the applicant's retirement in the pay grade of O-5.  The recommendation was approved by the Acting DASA.  Lacking evidence to the contrary, this Board is satisfied that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout his separation process.

4.  The applicant submits to this Board numerous letters and sworn statements in support of his claims.  The applicant also submits as evidence a letter from the CG who issued the GOMOR.  The CG stated, in effect, that the intent of the GOMOR was to ensure that the applicant would not be promoted; it was not his intent for the reprimand to adversely impact the applicant's retirement grade.

5.  The evidence of record further indicates that during the time in question the applicant's entire record of service was considered in determining whether or not to place the GOMOR in his OMPF.  While the applicant's records are otherwise impressive, the acts committed by the applicant near the end of his service, when taken together, outweighed his record of military service and made his service as an O-6 unsatisfactory.

6.  By regulation, 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.  To support alteration or removal of the document from the OMPF, an individual has the burden to provide clear and convincing evidence that the document is untrue or unjust, in whole or in part, to support its removal from the OMPF.  The applicant has failed to meet this regulatory burden of proof.

7.  Army Regulation 15-80 states, in pertinent part, that an officer is not automatically entitled to retire in the highest grade served on active duty.  Instead, an officer is retired in the highest grade served on active duty satisfactorily.  The AGDRB determined that the applicant's highest grade satisfactorily held was pay grade O-5 for retirement grade.  The recommendation was approved by the Acting DASA.  All requirements of law and regulation were followed throughout the process and the applicant's rights were not violated.

8.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

9.  Therefore, in view of the foregoing, there is no basis for granting relief to the applicant in this case.





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)                                         AR20080000165



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ABCMR Record of Proceedings (cont)                                         AR20080000165



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