IN THE CASE OF:	

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090003549 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

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

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of a General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF), or in the alternative that the GOMOR be transferred to the restricted portion of his OMPF.

2.  The applicant states, in effect, he was denied due process in the administration of the GOMOR; that he was punished inappropriately in that he was not involved and cleared by another's confession; and this was an administrative action that has served its purpose.

3.  The applicant provides a self-authored statement and the 14 enclosures identified as evidence in the statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was appointed a first lieutenant (1LT) in the Judge Advocate General’s (JAG) Corps of the U.S. Army Reserve (USAR) on
10 September 2001.  On 12 May 2004, he was promoted to captain (CPT).

2.  On 25 August 2005, U.S. Army Human Resources Command (HRC) Orders A-08-517865, ordered the applicant to active duty in support of Operation Iraqi Freedom, for a period of 405 days, effective 6 January 2006.

3.  On 30 April 2006, the Deputy Commanding General (DCG), Multi-National Corps-Iraq, a major general (MG), issued the applicant a GOMOR, in which he reprimanded the applicant for conduct unbecoming an officer.  The DCG outlined the action that supported the issue of the GOMOR, which was, in effect, that the applicant misled law enforcement officials for the personal benefit of a colleague, which amounted to his abuse of his position as a legal advisor.  The DCG further indicated that the applicant failed to uphold the standards expected of a commissioned officer of the Army and damaged his reputation as a trusted legal advisor to his command.  He further indicated that the applicant's behavior showed a serious lack of judgment, personal discipline, candor, and integrity.  The DCG further indicated that he was imposing the reprimand as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), and that he was considering filing the GOMOR in the applicant's OMPF; however, he would not make a final determination on filing until he received and considered any response from the applicant.

4.  On 1 May 2006, the applicant completed a memorandum in which he acknowledged that he had read and understood the unfavorable information presented to him; that he understood he had seven calendar days from the date of acknowledgment of receipt to submit matters in his own behalf; that he understood that if he failed to submit matters within seven calendar days, a final filing decision could be made without any input from him; and he indicated that he did intend to make a statement in rebuttal or to submit any other matters on his own behalf.

5.  On 2 May 2006, the applicant submitted a memorandum, subject: Matter for Consideration, regarding the GOMOR.  He acknowledged that he was wrong and took full responsibility for his actions.  He stated that not only did he tarnish the reputation of the Army JAG Corps, but he breeched the basic set of values he shared with his fellow Soldiers.  He further indicated that his behavior was disrespectful and unnecessary.  It was a breach of his personal standards and it was a poor example for those who looked to him for leadership.  He stated that it was no excuse that he thought he was helping a friend.  Both he and his friend would have been better served if he had paused to reflect on the larger values of the Army and his responsibilities as a Soldier.  He stated that he learned about his faults during this incident, and his wish was to work to restore the standing of his branch and his commission within the organization.  He also indicated the incident would not be repeated.  He further commented that he hoped he could continue to offer his service to the Army and restore the faith he misused.  He finally requested that the GOMOR not be filed in his OMPF.

6.  On 21 May 2006, the DCG, Multi-National Corps-Iraq, directed the GOMOR be filed in the applicant's OMPF.

7.  On 10 March 2008, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) requesting the GOMOR in question be transferred to the restricted portion of the OMPF.  He stated that during his second deployment, he received the GOMOR for arguing with a Military Police (MP) official over whether contractors in theater could possess alcohol.  He states at the time he was informed that this tacitly justified another officer's misconduct.  He further indicated that he was not involved in any misconduct; however, the argument gave the MP the appearance he was trying to contravene a lawful order.  He stated that over a year had passed since that difficult deployment and in that time he had rededicated himself to the Army values.  He indicated he had received two Officer Evaluation Reports (OERs), an Army Commendation Medal (ARCOM), and held the position of Operations Officer for his unit.  He concluded by stating he sincerely believed the correction provided by the reprimand had served its purpose, and that it would be in the best interest of the Army to transfer the reprimand to the restricted portion of his OMPF in order to allow him to continue to serve.

8.  On 10 March 2008, the DASEB considered the applicant's appeal.  It noted that the applicant provided three supporting statements from his peers and that none were from his current chain of command.  It also indicated that the GOMOR imposing authority was contacted and indicated that it was his desire that the GOMOR remain filed in the applicant's OMPF for the time being.  He stated that not only had the applicant lied, but abused his position as a legal advisor.  The DASEB stated the applicant was mildly remorseful and restated the comments related to his recent performance the applicant provided in his appeal request.  The DASEB opined that the nature of the offense was more than a violation of  General Order Number 1 and a mere minor lapse in judgment, but displayed gross malfeasance and unethical conduct by using his status as a JAG officer to influence the MP.  The DASEB, after reviewing the evidence and information, believed that sufficient time had not elapsed and it would not be in the best interest of the Army to have the GOMOR transferred and it unanimously voted to deny the applicant's appeal.

9.  On 21 May 2008, the President, DASEB, notified the applicant that the DASEB had deliberated on his appeal to transfer the GOMOR from the performance to the restricted portion of his OMPF.  She stated that after careful consideration, the DASEB voted to deny the transfer of the GOMOR in question. She further advised the applicant that the DASEB had only arrived at this decision after a thorough evaluation of his entire record.

10.  In his self-authored statement the applicant identifies the following three reasons the GOMOR he received violated the governing Army regulation:  he did not receive any investigation, report or other documents that formed the basis for the GOMOR; the filing of the GOMOR in his OMPF suggests the evidence was not reviewed or considered by the officer who directed the filing; and the incident which led to the GOMOR was a minor behavior infraction and the GOMOR should not have been filed in his OMPF.  He also provides an expanded argument and identifies the applicable regulatory rules he believes were violated in his case.  He finally concludes his statement by indicating the issue and filing decision of the GOMOR he received violated the governing Army regulation, that it was in error and caused injustice.  As a result, he requests the GOMOR be removed from, or in the alternative that it be transferred to the restricted portion of his OMPF.

11.  The applicant also claims the filing of the GOMOR is unjust because he did not advise any MP regarding the legality of a contractor's possessing alcohol.  However, even if the allegation is taken as true, it would be a minor behavior infraction.  He claims it is difficult to conceive how a statement about a policy that was much debated and researched within the JAG community, such as whether General Order Number 1 applied to civilian contractors, can reasonably be construed to be conduct unbecoming an officer.

12.  The applicant provides news articles regarding incidents of misconduct related to his senior rater and supporting OERs and letters of support, which attest to his excellent past and subsequent excellent duty performance.

13.  Army Regulation 600-37 (Unfavorable Information) 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.

14.  Paragraph 3-4 of the unfavorable information regulation contains guidance on filing of non-punitive administrative letters of reprimand, admonition, or censure in official personnel files.  It states, in pertinent part, that a letter, regardless of the issuing authority, may be filed in the OMPF upon the order of a general officer.  Letters filed in the OMPF will be filed in the performance portion. The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  A letter to be included in a Soldier's OMPF will be referred to the recipient concerned for comment.  The referral will include reference to the intended filing of the letter.

15.  Paragraph 3-4b(1)a of the unfavorable information regulation states, in pertinent part, that the referral will include and list applicable portions of investigations, reports, and other documents that serve, in part or in whole, as the basis for the letter, providing the recipient was not previously provided an opportunity to respond to information reflected in that documentation.  Paragraph 3-4(1)b states, in pertinent part, that statements and other evidence furnished by the recipient will be reviewed and considered by the officer authorized to direct filing in the OMPF.  This will be done before a final determination is made to file the letter.  Should filing in the OMPF be directed, the statements and evidence, or facsimiles thereof, may be attached as enclosures to the basic letter.

16.  Paragraph 3-4(1)c(4) of the unfavorable information regulation states, in pertinent part, that the letter will be forwarded for inclusion in the performance portion of the OMPF only after considering the circumstances and alternative non-punitive measures.  Minor behavior infractions or honest mistakes chargeable to sincere but misguided efforts will not normally be recorded in a Soldier's OMPF.  Once placed in the OMPF, however, such correspondence will be permanently filed unless removed through the appeal process.

17.  Chapter 7 of the unfavorable information regulation states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR filed in his OMPF is in error and unjust because he did not receive copies of investigations, reports, or other documents that formed the basis for the GOMOR when it was issued; the filing of the GOMOR in his OMPF suggests the evidence was not reviewed or considered by the officer who directed the filing; and the incident which led to the GOMOR was a minor behavior infraction and the GOMOR should not have been filed in his OMPF was carefully considered.  However, there is insufficient evidence to support this claim.

2.  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.  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.
3.  The evidence of record in this case confirms the applicant was issued a GOMOR by proper authority and that it was properly referred to him prior to the OMPF filing decision being made.  It further shows the applicant's matter for consideration memorandum was completed and returned to the imposing GOMOR general officer well before the final filing determination was made and it accompanied the GOMOR when it was filed in the OMPF.  As a result, it is clear the matters he submitted for consideration were considered by the imposing general officer prior to the final filing determination being made.

4.  The evidence of record is void of any investigative documents or records related to the incident in question and the only reference to an investigation is the one made by the applicant.  As a result, it is unclear whether there were reports, investigations, or other documents available to the imposing authority at the time the GOMOR was issued and/or that the applicant had not previously been provided an opportunity to respond to information upon which the GOMOR was based during any investigation that may have been conducted.

5.  Further, in the memorandum submitted for consideration by the applicant during the referral process, he acknowledged his wrongdoing and admitted that his behavior was disrespectful and unnecessary.  He also admitted he breached his personal standards and he was a poor example for those who looked to him for leadership.  He further commented that it was no excuse that he thought he was helping a friend.

6.  In addition, the applicant based his appeal to the DASEB on the fact that more than a year had passed since his deployment and that he had rededicated himself to the Army values.  He raised no argument regarding the validity of the GOMOR or errors in the filing decision/referral process.  Given the applicant is a qualified JAG Corps officer, it is highly unlikely that he would admit to the infraction based solely on the advice of his supervisor at the time the GOMOR was imposed or that he would have not raised his technical arguments he now presents if he truly believed the GOMOR was untrue or unjust as he now claims. In addition, the imposing GOMOR general officer was contacted by the DASEB and he indicated it was his belief the GOMOR should remain filed in the applicant's OMPF because not only did the applicant lie, but he also abused his position as a legal advisor, which obviously shows he believes the GOMOR was not based on a minor behavior infraction and not yet served its intended purpose. 

7.  Although the applicant has provided supporting OERs and statements that attest to his excellent past and present duty performance, he has failed to provide clear and convincing evidence that the GOMOR in question is untrue or unjust.  Therefore, he has failed to satisfy the regulatory burden of proof necessary to support a successful appeal for removal of the GOMOR from his OMPF, or for its transfer to the restricted portion of the OMPF.

8.  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

____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)                                         AR20090003549



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ABCMR Record of Proceedings (cont)                                         AR20090003549



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