RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2008
	DOCKET NUMBER:  AR20080003496 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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, in effect, that his General Officer Memorandum of Reprimand (GOMOR), Officer Evaluation Report (OER) for the period ending 
30 June 2006, be removed from his Official Military Personnel File (OMPF) and that all related adverse information be removed from his Security Clearance File.   
2.  The applicant states, in effect, that he is submitting this application to correct a significant error and injustice concerning adverse information currently in his OMPF and other Department of the Army records.  He contends that a preponderance of the evidence will prove him right.  

	a.  The applicant states that he was wrongfully accused of accessing sexually suggestive websites from his government computer.  At the time he worked for the Defense Threat Reduction Agency (DTRA).  He was immediately judged as the person who had accessed the inappropriate websites.  There was no 15-6 investigation of the incident.  The Deputy Director, DTRA filed a GOMOR in his OMPF (first injustice).

	b.  The DTRA gave him an adverse OER after he had departed the agency on terminal leave (second injustice).

	c.  The DTRA filed adverse information in his security clearance file which has caused him to lose a genuine job offer and the opportunity to work for the Department of Defense as a civilian (third injustice).

	d.  The applicant states that the initial filing of the GOMOR did not meet even the lowest standard of evidence and should not have been given the presumption of regularity afforded most documents in an OMPF.  He further states that the deputy director filed the GOMOR without first talking to him, but rather just relied on the security office even though there was no systemic analysis of the computer or an informal 15-6 investigation.

	e.  The applicant's lawyer had a contractor working for the National Security Agency conduct an independent review of the evidence.

	f.  The applicant contends that the GOMOR has served its intended purpose since he is now retired and the GOMOR no longer serves any valid purpose.  

	
      g.  The applicant wants the OER removed from his OMPF because: (1) he denies and disputes that he misused his government computer; (2) the evidence did not meet even the lowest standard of evidence; and (3) he did not receive the OER for review for nearly 60 days after the ending date of the report.

	h.  The applicant specifically wants the incident report removed from his Army security clearance file and from the Joint Personnel Adjudication System because: (1) the filing of the GOMOR did not meet the lowest standard of evidence; (2) the DTRA did not at any time revoke his access to classified material or his security clearance; (3) he never received a letter of intent to revoke or suspend his security clearance; (4) he continued to perform his duties with no restrictions to his access to classified information; (5) he did not misuse his government computer; and (6) the incident report has been in his security clearance file for over a year and has adequately served any intended purpose.  

3.  The applicant provides the following supporting documents:

	a.  Letter from spouse (TAB A);

	b.  Character Reference from Immediate Rater/Supervisor (TAB B);

	c.  Letter from Computer Systems Engineer (TAB C);

	d.  Email dated 18 January 2006 pertaining to reprimand obtained through the Freedom of Information Act (FOIA) (TAB D);

	e.  Second Email dated 18 January 2006 pertaining to reprimand obtained through the Freedom of Information Act (FOIA) (TAB E);

	f.  Letter of Reprimand (TAB F);

	g.  Response to Letter of Reprimand (TAB G);

	h.  Officer Evaluation Report (TAB H);

	i.  Appeal of Officer Evaluation Report (TAB I);

	j.  Letter from OER Appeals and Correction Branch, Human Resources Command, dated 5 October 2006 (TAB J);

	k.  Appeal of OER (second submission) TAB K);
	
      l.  Email response to OER appeal (TAB L);

	m.  Memorandum dated 28 November 2005 pertaining to Security Clearance obtained through FOIA (TAB M);

	n.  Email dated 30 November 2005 pertaining to Security Clearance Memorandum obtained through FOIA (TAB N); and

	o.  Letters of character reference (TAB O).

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was retired for length of service, in the rank of major, pay grade O-4.  He had completed 21 years, 7 months, and 
9 days of creditable active duty.

2.  On 7 December 2005, the Deputy Director, DTRA, officially reprimanded the applicant for blatant misuse of government time and equipment by accessing pornographic websites from a government computer during the day in his office.  The basis for this reprimand was a report from Security and Counterintelligence.  The applicant was required to acknowledge receipt of the reprimand and was given seven calendar days in which to submit any matters of extenuation, mitigation, or rebuttal. 

3.  On 9 January 2006, the applicant wrote a response to the Deputy Director's reprimand requesting that he reconsider his decision and withdraw the reprimand.  In support of this request the applicant stated:

	a.  that to have gained access to view and surf these websites, he would have needed to establish an account using his personal credit card;

	b.  that he does not have and never did have an account to view pornographic websites as substantiated by copies of his personal credit card statements;

	c.  that he had not entered the website addresses in question using his government computer;

	d.  that the computer access log indicates "unknown user" for each access to the websites in question;

	
      e.  that on 24 and 29 August, and on 1, 17, and 27 September 2005, at the exact same time that the access log indicates that the websites in question were accessed, he was not at his computer and documented his actual location or activity;

	f.  that he departed his work space daily from 11:00 to 13:00 hours for lunch and physical training and that this same period of time is when the access logs indicates the websites in question were accessed on 31 August, 
16 September, and 6, 11, 18, and 24 October 2005;

	g.  that he does not sit at his work space during the entire day, but rather attended meetings, training, briefings, and was elsewhere to speak with civilian and other military members of DTRA;

	h.  that on 24, 29 and 31 August; 1, 16, 20 and 23 September; and 3, 6, 11, 17, 18, and 21 October 2005, the computer access log indicates that numerous attempts to access two websites in question at the exact same time and date which is indicative of an automatic trigger and/or connector that functions without participation from the user; 

	i.  that about 3 weeks prior to his trip to Las Vegas on 12 October 2005, he had requested and received permission from the Security and Intelligence Office to use his government computer to check hotel availability at casinos; and

	j.  that if he were using his computer to access pornographic websites, he would not have requested permission to check casino hotels in Las Vegas.	

4.  On 9 January 2006, the applicant's counsel requested that the reprimand be withdrawn.  Counsel stated that "Although the Security and Counterintelligence report states 'All accesses were verified as the user being in his place of duty and the sites were all accessed during normal hours,' [the applicant] has provided sufficient rebuttal evidence to prove otherwise."

5.  On 24 March 2006, the imposing commander, in a memorandum, stated that he had carefully considered the facts and circumstances surrounding the incident; that he had reviewed the applicant's response and attachments; and that he had reviewed the recommendations of his supervisors.  The imposing commander then directed, in effect, that the one-page reprimand and all associated documents be filed in the performance portion of the applicant's OMPF. 

6.  In an undated letter, Mr. Richard M____ stated that he was asked to conduct a review of various documents in reference to an incident wherein the applicant was accused of viewing unauthorized websites while on his government computer system.  Mr. M____ stated that he used a web filter log and the ingress/egress badge swipe log as a basis for his assessment.  He said that he asked for additional [system] information but was informed that the command would not provide those logs to the applicant.  On the basis of the limited information, he opined that there was no reasonable assurance that the applicant was the individual who actually viewed the unauthorized sites.  He further stated that without having the local system's security log, the domain security log, the firewall log, and the ingress/egress logs in their raw, hashed, and unaltered form, it was not possible to conclusively prove that the viewer of the unauthorized websites was the applicant.  He further speculated that an insider in the building could have caused the system to go out to an unauthorized website without the applicant's knowledge; or that, an email could have been received that placed a link into the applicant's profile without his knowledge that caused a pop-up on the system to link to an unauthorized website.

7.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part, that administrative letters of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The letter must be referred to the recipient and the referral must include and list applicable portions of investigations, reports or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.  Letters of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer level authority and are to be filed on the performance fiche.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached.  Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7.  Letters of reprimand intended for filing in the Military Personnel Records Jacket (MPRJ) may be retained for no more than 3 years and must state the length of time they are to be retained.  Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to the DASEB to relocate a reprimand, admonition or censure (normally for Soldiers in pay grade E-6 and above) are based on proof that the intended purpose has been served and that transfer to a restricted fiche would be in the best interest of the Army.  The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed.  If 
the appeal is denied the DASEB letter of denial will be filed on the performance fiche, and the appeal itself and any associated documents will be filed in the restricted portion of the OMPF.  Otherwise this Board may act in accordance with Army Regulation 15-185 and the Soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.

8.  The contested OER is a twelve-month annual OER covering the period ending 30 June 2006 for duties as a physical scientist.   This OER was authenticated in Part II (Authentication) by the rated officer (the applicant), the rater, and the senior rater.

9.  The applicant received ratings of “YES” in six of the seven elements under Professionalism.  He received a "NO" for integrity.  The applicant received ratings of "YES" in all fifteen elements of Leader Attributes in Part IVb.  Part IVc (Army Physical Fitness Test (APFT)) indicates that he passed the APFT and was within the height and weight requirements.  

10.  Part V, (Performance and Potential Evaluation) (Rater) rates the applicant's performance as satisfactory performance, promote.  The rater stated, in part, that the applicant was capable in his scientific and technical duties; that he did an outstanding job working to resolve challenges; that he scored 291 out of 300 points on his Army Physical Fitness Test; that he volunteered personal time to the community hockey team; and that he had received an LOR during this reporting period.  

11.  Part VII, (Senior Rater) evaluated the applicant's potential for promotion as "Do Not Promote."  The senior rater stated that although the applicant had performed satisfactorily in his assigned duties, he was issued an LOR for improper use of a government computer.  His lack of judgment while in a leadership position negates any promotion potential.  The "Below Center of Mass-Do Not Retain" box was checked in Part VIIb (Potential compared with Officers senior rated in the same grade).  The OER was referred to the applicant.

12.  On 26 August 2006, in response to the referred OER, the applicant again stated that he did not misuse his government computer; that he had not compromised his integrity; that his rater had informed him that he signed the OER under duress; that the rater was improperly pressured to include comments that the applicant had received an LOR; and that the entire OER was questionable.


13.  On 16 October 2006, the applicant submitted his appeal of the subject OER based on substantive inaccuracy.   He stated that his rater informed him that he was signing the OER under duress and that the applicant had not compromised his integrity.  He also appealed the senior rater's block checks and the comments referring to his GOMOR, lack of judgment, and promotion potential.  He further stated that he had not received the subject OER until 24 August 2006, nearly
60 days after the ending date of the report period.

14.  On 13 March 2008, the Army Special Review Board (ASRB) considered the applicant's OER appeal.  It determined that the applicant's primary argument that he rater was pressured into rendering the OER as written was not supported by any evidence beyond his own assertion.  The ASRB further determined that the statements contained in the subject OER that he had received an LOR during the rating period were statements of fact.  The ASRB concluded that the validity of the GOMOR was not an issue for the ASRB to adjudicate.  It further concluded that the lateness in referring the OER to the applicant did not create an error or injustice.  The spirit and intent of the regulation was met, and his response was properly filed in his OMPF.    

15.  The applicant provides five character reference letters from friends and co-workers written in May 2006.  They essentially state that he is a dependable, reliable, trustworthy, morally and ethically sound individual who possesses impeccable character and integrity.  A sixth letter, written on 3 May 2006, was from his rater, stating almost verbatim, the same observation.

16.  On 28 November 2007, the applicant's spouse wrote a letter in the applicant's behalf, requesting that the GOMOR, OER, and all adverse information in his security files be removed.  She states that they are a Christian family with two children who are preparing for college.  The applicant has lost more than one opportunity for employment due to the adverse information.  This caused severe financial and social suffering for the family.  She further states that the applicant had served honorably during his 22 years of service and she asks that this adverse information not put a permanent stain on his entire military career. 

17.  Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.
18.  Army Regulation 623-105 further provides that the burden of proof in appealing an OER rests with the rated individual.  Accordingly, to justify deletion or amendment of a report, the applicant must have produced evidence that clearly and convincingly nullified the presumption of regularity.  Clear and convincing evidence must have been of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

19.  The regulation also provides that reports with negative remarks about the rated officer's values or leader attributes/skills/actions in a rating official's narrative evaluations, contains a rating of "no" in Part IV, a rating of unsatisfactory performance in Part V, or do not promote in Part V or VII, or a comment to that effect by any rating official, or a report with any negative comments in any of the narrative portions of an evaluation report, will be referred to the rated officer by the senior rater for acknowledgement and comment before the report is forwarded to the Department of the Army.  The rated officer will be given a reasonable period in which to respond.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the applicant received an LOR for misuse of government time and equipment.  However, the documentation upon which this GOMOR was based is not available for review.

2.  While Mr. M____ expressed that there was reasonable doubt regarding whether the applicant was indeed the actual user who accessed the unauthorized websites, he also stated that he could not make a definite determination based on the available information.  

3  Since the DTRA based his action on all of the available evidence, a presumption of regularity with regard to the issuance of the LOR should prevail.  

4.   The applicant contends that he was not afforded the opportunity to discuss the issues before the GOMOR was filed.  However, the GOMOR itself provided him a period of seven calendar days to submit his response.   

5.  The evidence shows that the applicant was afforded the opportunity to summit matters in his own behalf prior to a final filing decision.  He did so on 9 January 2006, 32 days after receiving the GOMOR.  His response was received and considered.  Subsequently, the GOMOR was referred by a general officer for filing in the performance portion of the applicant’s OMPF.
6.  The GOMOR was properly administered in accordance with applicable regulations and properly filed in the applicant’s OMPF.  There is no evidence of any violation of any of the applicant’s rights.

7.  The applicant has not provided sufficient evidence or argument to form a basis for removing the GOMOR from his OMPF, or for moving it to the restricted portion of his OMPF. 

8.  The applicant's appeal of the subject OER was considered by the ASRB.  The ASRB determined that the evidence presented did not substantiate the applicant's contention that the subject OER was the product of inappropriate pressure.  It further determined that the lateness in presenting the OER to the applicant did not cause any error or injustice.  

9.  The subject OER has been accepted by Headquarters, Department of the Army, and is included in the applicant's official record.  Therefore, it is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The applicant has not provided any evidence to overcome this presumption of regularity.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

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


ABCMR Record of Proceedings (cont)                                         AR20080003496



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508