IN THE CASE OF:	  

		BOARD DATE:	        28 AUGUST 2008

		DOCKET NUMBER:  AR20080004116 


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:

The applicant defers to his counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the General Officer Memorandum of Reprimand (GOMOR), dated 15 August 2003 be voided; that he be considered by a Standby Selection Board for promotion to colonel, pay grade O-6; that he be reinstated to active duty in the pay grade of O-6; that he receive all back pay, allowances, and other benefits to which entitled, to include full service credit; and that he receive any other relief the Board deems appropriate.

2.  Counsel makes a 28-page statement.  He argues that "a GOMOR that is factually incorrect and inaccurate is also erroneous and unjust."  He states that the GOMOR does not reflect the findings of the Army Regulation 15-6 investigation; that the applicant did not "repeatedly" misrepresent his educational credentials; and that the applicant did not misrepresent his educational credentials for the purpose of obtaining admission to a senior service school or to obtain an advanced degree.

3.  Counsel refers to Title 5, United States Code, section 552a, which permits an individual to request amendment of records believed to be inaccurate and maintained as such in violation of the Privacy Act.  Agencies must maintain all records which are used in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably 
necessary to assure fairness to the individual.  In R.R. v. Department of the Army, 482 F. Supp. 770 (D.D.C. 1980), the Court considered a claim for amendment under the Privacy Act brought by a former Soldier who alleged that his medical records contained factually inaccurate and erroneous information.  The defendant argued that the Act's amendment provisions were limited to "purely factual misrepresentations."  The Court disagreed, noting that it would defy common sense to suggest that only factually erroneous assertions should be deleted or revised, while opinions based solely on these assertions must remain unaltered in the individual's official file.  An agency may not refuse a request to revise or expunge prior professional judgments once all the facts underlying such judgments have been thoroughly discredited.

4.  Counsel contends that in this case, the GOMOR does not contain statements of subjective judgment or opinion.  The GOMOR directly refers to factual findings that are demonstrably inaccurate.  It states, "you repeatedly misrepresented your educational credentials for official purposes.  Your misrepresentations resulted in your selection for resident senior service college attendance and caused the National Defense University (NDU) to incorrectly issue a master’s degree to you. You are hereby reprimanded for your conduct."  The statements cannot be construed as subjective opinions or judgments.  Even if they were subjective opinions or judgments, their expungement by this Board would be required in accordance with Federal court decisions because they would be based on demonstrably erroneous assertions of fact.

5.  Counsel contends that the applicant is entitled to Special Selection Board (SSB) consideration because the promotion boards that considered him for promotion to colonel, pay grade O-6, did so based on records containing material factual error.  Counsel states that it is very probable that the applicant would have been selected for promotion if the boards had not considered the factually erroneous and unjust GOMOR.  The GOMOR greatly impugned the applicant's integrity and honesty; therefore, no argument can be made that the error was immaterial to his chances for promotion. 

6.  Counsel provides copies of the Memorandum, Department of the Army Suitability Evaluation Board, with enclosures, dated 30 November 2007; GOMOR, dated 15 August 2003; applicant's GOMOR rebuttal memorandum, dated 29 September 2003; GOMOR Filing Determination memorandum, dated 
2 December 2003; Notification of Promotion Status memorandums, dated 
15 December 2004, 17 November 2005, and 24 October 2006; Memorandum, Referral of Involuntary Separation, dated 16 April 2004; Memorandum, Notification of Retire or Removal Date from Active Duty, dated 22 June 2004; applicant's letter to the Chief, Army Reserve, dated 18 June 2004; Board of 
Inquiry Proceedings with cover memorandum, dated 1 September 2004; applicant's Officer Evaluation Reports from June 2002 through February 2007; awards; and training completion certificates.

CONSIDERATION OF EVIDENCE:

1.  When the GOMOR was written, the applicant was serving as an Active Guard Reserve (AGR) lieutenant colonel, pay grade O-5.  He was assigned to the Office, Chief of the Army Reserve for duty as a strategy and integration officer.  His responsibilities required him to provide direct support to the Chief and Deputy Chief, Army Reserve on issues that affected the strategic direction of the Army Reserve.  At the time of his application, the applicant was a retired United States Army Reserve officer in the rank of lieutenant colonel, pay grade O-5.

2.  Section IV - Findings, of a report of investigation, date unavailable, found that the applicant at the time of his application for the 2000 United States Army Reserve Professional Development Education Board (PDE) did not possess a bachelor of science (BS) degree in anthropology from Hawaii Pacific University; that he was reckless in allowing his ORB to show that he had a BS degree; that his conduct in this matter, while not clearly intentional, amounted to a negligent misrepresentation to the PDE; that the result of his recklessness was selection for attendance at a senior service school; that he was erroneously awarded a master’s degree as a result of his reckless misrepresentation; that there was no evidence showing that he used his ORB with the false entry of a BS degree for any other competitive board; that he had ample time to rectify the results of his misrepresentation about his degree status but claimed that his records were inaccessible due to a permanent change of station move; that at the time of his written statement, the applicant knew he would not be able to provide valid documentation proving that he had a BS degree; that his failure to notify the Full Time Support Management Directorate of the misrepresentation was intentional; that he was informed on 21 February 2003 that his ORB would be corrected to remove the BS degree; that on 31 March 2003, he admitted to the investigator that he could not substantiate award of the BS degree; that his misrepresentation of his BS degree to the PDE was material in that he would not have been selected for the National War College if it was known to the PDE that he had not received a BS degree; and that no findings had yet been made with regard to remaining allegations.

3.  In a memorandum, United States Army Reserve Personnel Command, dated 11 July 2003, an investigating officer reported his supplemental findings on the remaining allegations.  He stated that the applicant's dossier contained no evidence establishing that the applicant had:

	a.  committed larceny of government funds in connection with a travel claim;

	b.  forged his ex-wife's name affecting her entitlement to any government or military benefits;

	c.  used deceit to trick his ex-wife into signing documents affecting her entitlement to any government or military benefit; or

	d.  caused his ex-wife any financial harm.

4.  On 15 August 2003, the applicant received a formal, written GOMOR for misconduct.  The basis for this action was the report of investigation.  The GOMOR clearly states that the applicant was reprimanded for repeatedly misrepresenting his educational credentials for official purposes resulting in his selection for residence senior service college attendance and caused the NDU to erroneously award him a master’s degree.  The applicant was further informed that this written reprimand was imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice.  

5.  On 29 September 2003, the applicant submitted a written rebuttal to the GOMOR.  He stated that the investigating officer described his conduct as "not clearly intentional."  The applicant added that he had fully cooperated with the investigation, admitting that he was reckless in failing to correct the error in his ORB, even though he believed the degree was merited.  He did not consider that such an error would provide an advantage for selection to attend the War College.  He stated that a degree in anthropology at Hawaii University is not particularly prestigious, as compared to his military accomplishments over the past 32 years.  The applicant further stated that a GOMOR in his OMPF was likely to trigger an Army Grade Determination Review Board, as suggested in the report of investigation.  Such treatment seemed wholly disproportionate to the investigator's finding that his conduct was "not clearly intentional."  He suggested that filing the GOMOR in his local personnel records would allow him to continue to serve and to redeem himself in the Army Reserve.  He continued by saying that Excelsior University is in the process of granting him a BA degree in Liberal Studies.  He contended that this demonstrated that he had the credits all along to attain a baccalaureate degree prior to the War College selection board.  He pointed out that it was important to note that the type of degree clearly had no bearing on board selections or future potential.  He stated that he was deeply saddened that the circumstances leading to the GOMOR had damaged the way in which his superior officers now view him.  He acknowledged that he made a mistake and accepted full responsibility for that mistake.  He humbly asked that he be given the opportunity to rebuild his reputation through continued service as 
an AGR officer in the Army Reserve.  Filing the GOMOR in his local file would serve the purpose of punishing him but would also allow him a chance to acquit himself with some measure of honor.  

6.  On 2 December 2003, the imposing general officer stated in a memorandum that he had carefully considered the applicant's misconduct and response to the GOMOR.  He directed that the GOMOR be filed in the applicant's OMPF.  

7.  On 16 April 2004, the Chief, Army Reserve, referred an involuntary separation action pertaining to the applicant to the Commander, United States Army Military District of Washington, Fort McNair, Washington, DC.  The separation action was based on an AR 15-6 investigation that substantiated the applicant had misrepresented that he possessed a baccalaureate degree in anthropology from Hawaii Pacific University in an ORB submitted for consideration by the 2000 PDE Board resulting in his selection for resident senior service college attendance at NDU; that he misrepresented that he possessed a baccalaureate degree in anthropology from Hawaii Pacific University in an ORB submitted to NDU to substantiate that he had a baccalaureate degree upon the beginning his course of study; and that he knowingly misrepresented to officials at Human Resources Command that he possessed documentation that would substantiate that he possessed a baccalaureate degree in anthropology from Hawaii Pacific University.  The applicant had not elected any option with regard to the separation action; therefore, the separation action was referred to a Board of Inquiry (BOI).

8.  On 18 June 2004, the applicant wrote a memorandum to the Chief, Army Reserve regarding his elimination from the service.  He stated that he had requested to meet with the Chief under his "open door" policy but was denied.  He contended that, for 2 years, and as a result of mishandling of privacy act information, he had been distained, embarrassed, marginalized, and had his integrity attacked.  Documentation containing derogatory statements made by his ex-wife related to their finances was misrouted, faxed and/or communicated around the AGR personnel community.  Even though the information in the documentation was false, his peers and some senior AGR leadership at potential units of assignments believed the content to be true.  He was recalled from his new assignment and his personnel records were flagged pending action by the Commander, Military District of Washington (MDW).  The Commander, MDW found no need to pursue and lifted the flag favorably.  However, the flag remained in his records until the end of February 2003.  On 7 March 2003, he was granted a top secret sensitive compartmented Information (TS SCI) access. Another investigation was ordered into why this security clearance was granted.  Another 5 1/2 months passed before the investigating officer found no wrong 
doing on his part.  During this time, personnel did a research of his personnel records, looking for discrepancies that could be exploited.  They found that there was no evidence of a college degree or military parachute jumpmaster certification.  He stated that the fact of no evidence of degree completion was true, but that he had conducted his own search of the records and found evidence of his jumpmaster certification.  He stated that there was a rush to judgment and a presumption that he was guilty of misrepresentation because they believed the derogatory information in the mishandled documents.  In 1997 he had believed that he had completed all of the requirements for a degree.  He had no desire to file for the diploma as the only valid document is a certified transcript.  He had attended five separate universities in residence over the years.  It took over a year for them to respond; in the interim, he received a GOMOR.  The final verdict was that he had completed 172 hours of college credit and was short a 3-hour basic college math course for award of a baccalaureate degree.  He argues, "what person in their right mind would deliberately not attend a 3-hour basic math course to complete a degree."  He also argued that it is the responsibility of the Officer Personnel Records Branch at the Human Resources Command to verify the entries on the ORB.  The investigation pointed out that the ORB entry was a mistake on the part of the personnel office.  Nonetheless, he admitted that he should still have applied for the degree.  He further contended that when he saw the degree entry on his ORB, it was not as assumption, rather it was an expectation.  If he had not seen the entry he would have pursued the issue and discovered the 3-hour shortfall.  Instead, through a series of errors both on his part and officer management, he found his career of 33 years destroyed along with his reputation on nothing more than an administrative screw up.  He further contended that the National War College stated that he would have been allowed to attend the course anyway.  He simply would not have received the master’s degree diploma, which he had returned.  He concluded his memorandum by saying that he did not intentionally misrepresent himself to the PDE board.  He did not even apply for the National War College.  He had simply asked to attend any resident school.  He believed he was selected based on the quality of his military service when compared to others in the application process, nothing more or less.  He asked for reconsideration of the decision to remove him from service.   Because of this he will never be a colonel.  He has paid a high price.  He has been a volunteer for deployment since 1971 and had a request on file to deploy to the current war.  He asked for the opportunity to serve with the Army in the war zone.      

9.  In a memorandum, Human Resources Command, dated 22 June 2004, the applicant was notified that his name was removed from the 2003 Active Federal Service Extension lists for Fiscal Years 2003 and 2004.  As a result he had to be released from active duty.  He was further informed that he may request retirement in conjunction with his release from active duty or to retire in lieu of elimination.  The memorandum also informed him that his request dated 
24 February 2004 for a board of inquiry (BOI) would continue until it is either completed or the effective date of his release from active duty, whichever occurred first.  His required removal date was adjusted to 31 October 2004.

10.  On 27 July 2004, a BOI convened to determine whether the applicant should be discharged for misconduct.  The BOI found that there was no substantiated misconduct; that there was no intentional omission or misstatement of fact; or that there was any conduct unbecoming an officer.  The BOI did find substantiation of professional dereliction.  Due to the applicant's professional dereliction, the records presented to the 2000 PDE board demonstrated a negligent misrepresentation of his academic credentials.  The applicant demonstrated a lack of initiative and poor judgment in not aggressively pursuing confirmation of the academic entries contained in his ORB.  The BOI recommended that the applicant be retained in the service with reassignment.

11.  On 1 September 2004, the appropriate authority published the finding of the BOI, and effectively closed the separation action.

12.  A memorandum notifying the applicant of his promotion status, dated 
15 December 2004, informed him that the Army Reserve Components Selection Board (ARCSB) that convened on 13 July 2004, had considered him for promotion [to colonel, pay grade O-6] and did not select him.

13.  On 11 January 2005, the applicant submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) requesting transfer of the GOMOR dated 15 August 2003 to the restricted portion of his OMPF.  The applicant based his request on the presumption that the GOMOR had served its purpose.  He further stated that he had proven to his chain of command by his performance that he possessed the necessary qualities of honor and integrity.  Therefore, this action was in the best interest of the Army.  The applicant also provided the results of the BOI held on 27 July 2004 and his subsequent Officer Evaluation Reports.  

14.  On 17 May 2005, the DASEB carefully considered and denied the applicant's request to transfer the GOMOR to the restricted portion of his OMPF.  The DASEB stated that they had reached their decision only after a thorough evaluation of the applicant's entire record.




15.  A memorandum notifying the applicant of his promotion status, dated 
17 November 2005, informed him that the (ARCSB) that convened on 12 July 2005, had considered him for promotion [to colonel, pay grade O-6] and did not select him.

16.  A memorandum notifying the applicant of his promotion status, dated 
24 October 2006, informed him that the ARCSB that convened on 11 July 2006, had considered him for promotion [to colonel, pay grade O-6] and did not select him.

17.  On 30 November 2007, the DASEB again considered the applicant's request to remove the GOMOR, dated 15 August 2003 from his OMPF, or to transfer the GOMOR to the restricted portion of his OMPF.  The DASEB determined that the GOMOR had served its purpose and approved its transfer to the restricted portion of the OMPF.  The DASEB further requested that the associated documents also be transferred to the restricted portion of the OMPF.

18.  On 31 December 2007, the applicant was released from active duty and transferred to the United Stated Army Reserve Control Group (Retired Reserve). He had attained the rank of lieutenant colonel and had completed 24 years, 
5 months, and 20 days of creditable active service; and had 11 years, 9 months, and 10 days of inactive service.

19.  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 in the performance section.  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 the restricted section 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 in the performance section, the appeal itself and any associated documents will be filed in the restricted section.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records clearly show that the applicant received a GOMOR for misconduct and that it was filed in his OMPF.  

2.  The evidence shows that the applicant was afforded the opportunity to review all of the evidence against him and to summit matters on his own behalf prior to a final filing decision.  His response was received and considered.  Subsequently, the GOMOR was referred by a general officer for filing in the applicant’s OMPF.

3.  The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of the applicant’s OMPF.  There is no evidence of any violation of any of the applicant’s rights.

4.  Furthermore, he petitioned the DASEB twice, requesting that the GOMOR be removed from his OMPF or transferred to the restricted portion of the OMPF.  It was subsequently moved to the restricted portion based on a determination that the GOMOR had served its purpose.

5.  The applicant's contention that the GOMOR is factually incorrect and inaccurate is not sufficiently supported by the evidence.   The investigating officer stated in his findings that the evidence was unclear as to whether the applicant's misrepresentation of his educational credentials was an intentional act.  However, the findings of the investigating officer and the findings of the BOI did establish that through his professional dereliction, the applicant negligently misrepresented his academic credentials.  Also, the misrepresentation did occur more than one time.

6.  The applicant’s other requests for relief are premised on the Board’s finding the GOMOR should be voided.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        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)                                         AR20080004116



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ABCMR Record of Proceedings (cont)                                         AR20080004116



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