IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090013608 


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 reconsideration of his earlier request that the General Officer Memorandum of Reprimand (GOMOR), dated 3 July 2006, be removed from his Official Military Personnel File (OMPF). 

2.  The applicant states that the GOMOR was put into his OMPF even after he explained in his rebuttal that he had not done what he was accused of doing.  He argues that:

	a.  he did not advise any subordinate to use countermeasures on a polygraph and that there is no evidence that supports this claim.  He adds that it is obvious that Major General (MG) Dexxxxxxx put this GOMOR in his permanent file based on his belief that the applicant advised someone to use countermeasures on a polygraph.  He adds that he appealed to his Member of Congress who contacted the Commanding General (CG), U.S. Army Intelligence and Security Command (INSCOM), MG Laxxxxxxxx.  MG Laxxxxxxxx’s response to the Member of Congress did not mention the applicant advised any subordinates to use countermeasures.  The reason MG Laxxxxxxxx did not address this issue is because he read the rebuttal the applicant had previously submitted and could not support MG Dexxxxxxx in this particular accusation.  If MG Laxxxxxxxx believed that the applicant had committed this act, he would have mentioned it.  There seems to be a discrepancy between MG Dexxxxxxx’s GOMOR and MG Laxxxxxxxx’s letter; 


	b.  he has already suffered the humiliation of being removed from his leadership position and the sensitive program in which he was involved and placed in an administrative office until his retirement.  Since retirement, he has been denied two Government positions based on this situation.  Besides, MG Dexxxxxxx’s accusations that the applicant advised a subordinate to use countermeasures on a polygraph is not true and the decision to have the GOMOR permanently filed in his OMPF is unjust. 

3.  The applicant provides a copy of a letter, dated 22 July 2008, from the CG, INSCOM, to his Member of Congress, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080007759, dated 4 November 2008.

2.  The applicant submitted a copy of a letter, dated 22 July 2008, from the CG, INSCOM, to his Member of Congress, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant’s records show he enlisted in the Regular Army (RA) on 23 May 1983 and was trained in and held military occupational specialty 98G (Signal Intelligence Specialist).  His records also show he executed several extensions and/or reenlistments in the RA, served in various staff and/or leadership positions, and was promoted through the ranks to master sergeant (MSG)/E-8.  He was honorably released from active duty on 28 February 2007 and transferred to the retired list in his retired rank of MSG on 1 March 2007.  He was credited with 23 years, 9 months, and 8 days of faithful active service.

4.  On 3 July 2006, while assigned to the 470th Military Intelligence Brigade, Fort Sam Houston, TX, a subordinate unit of INSCOM, the applicant received a formal, written GOMOR for misconduct.  The GOMOR stated, in effect, that in 1997 the applicant had used a physical countermeasure to manipulate the results of a polygraph examination.  It further stated that the applicant had advised a subordinate to use the same countermeasure technique in 2001.  The basis for this GOMOR was the applicant’s admission of this misconduct during a recent U.S. Army Intelligence investigation.  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 August 2006, the applicant rebutted the GOMOR.  He acknowledged taking a polygraph examination in 1997 and employing a technique that he had jokingly been told would allow someone to pass a polygraph examination.  He admitted that what he did was wrong even though he did not lie on the examination.  He indicated he regretted his action.  He further denied having discussed this technique with anyone else.  The applicant asked that the GOMOR be rescinded, or that it be filed locally, so that he could continue to support the intelligence community whether in the military or as a civilian after retirement.

6.  On 14 September 2006, the imposing commander, MG Dexxxxxxx, after reviewing the applicant’s response, determined that the facts associated with the applicant’s misconduct were sufficiently established by the record.  The applicant’s lack of professionalism and commitment to the Army values of integrity caused him great concern about the applicant’s future as a noncommissioned officer in the U.S. Army.  The imposing commander further determined that the unfavorable information upon which the GOMOR was based had been properly referred to the applicant, and the commander directed that the GOMOR be filed in the applicant's OMPF.

7.  There is no indication that the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) for relief prior to his retirement. 

8.  On 16 April 2008, the applicant wrote a letter to his Member of Congress stating, in effect, the circumstances of his GOMOR and how he was threatened with the loss of his retirement if he did not take another polygraph examination and admit to the use of physical countermeasures.  He further stated that at the time his father was terminally ill and had subsequently died from cancer.  This caused his thinking to be less than clear and had greatly influenced his giving in to their demands during the long interrogation that followed his May 2006 polygraph examination.  He asked the Member of Congress to help him remove the GOMOR from his OMPF.

9.  On 22 July 2008, by letter addressed to the applicant’s Member of Congress, MG Laxxxxxxxx, the INSCOM Commander at the time, stated that when the applicant was given the GOMOR, he consulted with legal counsel and was given sufficient time to prepare a rebuttal.  MG Dexxxxxxx, the imposing commander, considered the rebuttal, including the written admission by the applicant, and determined that an OMPF filing was an appropriate resolution of this matter.

10.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part, that an administrative memorandum 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 memorandum 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.  A memorandum 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 memorandum.  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.  A memorandum 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 memorandum 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 contends that his earlier request for a removal of the GOMOR, dated 3 July 2006, from his OMPF should be reconsidered.

2.  The applicant petitioned his Member of Congress for assistance and received a copy of the INSCOM Commander’s response to the Member of Congress.  The applicant believes that the absence of reference to the fact that he advised a subordinate to use countermeasures is proof that he did not commit this act and that there is a discrepancy between the contents of the GOMOR and the INSCOM Commander’s response.  In his response, the INSCOM Commander appears to be addressing the applicant’s intentional misconduct and the facts of the GOMOR; not the specifics elements of the misconduct.  The applicant's reliance on the failure to discuss both acts of misconduct in the INSCOM Commander's letter to the Member of Congress is misplaced.

3.  The evidence of record shows the applicant received a GOMOR for misconduct and that it was filed in his OMPF.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  The applicant’s response was received and considered.  Subsequently, the GOMOR was referred for filing in his OMPF.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.

4.  The applicant’s faithful service is not in question.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 evidence that would satisfy this requirement.  Therefore, 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 to amend the decision of the ABCMR set forth in Docket Number AR20080007759, dated 4 November 2008.




      _______ _   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)                                         AR20090013608



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ABCMR Record of Proceedings (cont)                                         AR20090013608



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