IN THE CASE OF:	  

		BOARD DATE:	    20 April 2010

		DOCKET NUMBER:  AR20090014740


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 "[R]emoval of GOMOR [General Officer Memorandum of Reprimand] and all related references thereto" from his Official Military Personnel File (OMPF).

2.  The applicant states the GOMOR is in error, and it is untrue and unjust in whole or in part.  He also states the GOMOR is illegal.  In a 24 July 2009 memorandum for the Department of the Army Suitability Evaluation Board (DASEB), he asserts:

	a.  the GOMOR was issued for alleged misconduct in a civilian court proceeding having nothing to do with the Army;

	b.  between 28 March 2007 and 10 March 2008, he submitted rebuttals and points of evidence refuting the allegations against him, including findings from the bars of the District of Columbia and New Jersey absolving him of the alleged wrongdoing on which the GOMOR is based;

	c.  the allegation he rendered a "false affidavit" was completely refuted, as was the allegation he attempted to "coerce" a settlement from a defendant in a civilian court case;

	d.  the Office of The Judge Advocate General (OTJAG) of the Army unlawfully released the GOMOR and related documents to persons outside the Army in 
violation of pertinent Army regulations and privacy laws thus "…telling the entire 
world that the undersigned had committed 'misconduct' for which he was to receive a 'Memorandum of Reprimand,' 'involuntary separation from the Army,' and for which his state bar officials were to be notified…."; and

	e.  the GOMOR was wrongfully filed in his OMPF in violation of pertinent Army regulations and, therefore, is defective and must be removed.

3.  The applicant provides:

	a.  two pages of documentation related to his initial request through the DASEB; and

	b.  a copy of his 6-page memorandum to the President, DASEB, requesting removal of the GOMOR, and containing 8 exhibits, labeled A through H.

4.  The applicant provides under separate cover:

	a.  copies of documents received by facsimile on 18 December 2009;

	b.  copies of documents received by facsimile on 21 January 2010; and

	c.  copies of documents received by facsimile on 22 January 2010.

CONSIDERATION OF EVIDENCE:

1.  When he received the subject GOMOR, the applicant was serving as a U.S. Army Reserve (USAR) Colonel, Judge Advocate General's (JAG) Corps.  He was transferred to the Retired Reserve as of 6 November 2008.

2.  In addition to being a USAR JAG Corps Colonel, the applicant served as an Assistant U.S. Attorney for the Middle District of Florida from around 1995 to around 2005.  During much of his tenure as an Assistant U.S. Attorney, he served as a prosecutor in the Criminal Division where, in the late 1990's, he successfully prosecuted three Plant City (FL) police officers and six Manatee County (FL) Sheriff's Office (MCSO) deputies for acts of criminal misconduct.

3.  In May 2000, the U.S. Attorney's Office focused attention on the Manatee County sheriff [hereafter known as the sheriff] and the applicant was assigned to conduct a criminal investigation into the sheriff's activities.  The investigation was later dropped and the applicant was reassigned to the Civil Division.

4.  On 31 January 2003, the applicant, as plaintiff, filed a civil lawsuit in U.S. District Court naming the sheriff (et alia) as defendant(s).  He retained, as civilian counsel, a subordinate JAG Corps officer to represent him in this matter.  During litigation, the sheriff filed a motion for sanctions against the applicant for attempting to coerce a settlement for $500,000 and attorney's fees.  The judge ruled for the defendant and, on 20 September 2005, ordered:  "That the [sheriff's] Motion for Sanctions against [applicant and applicant's attorney] for Bad Faith and Extortionate Conduct (Doc. 99) is hereby GRANTED."

5.  Following issuance of the 20 September 2005 court order, the sheriff filed a disciplinary complaint against the applicant with the bars in New Jersey and the District of Columbia, two of the places where the applicant is licensed to practice law.  Neither jurisdiction opted to take disciplinary action against the applicant and sent their rulings and other documents to the applicant's home and to the sheriff at the MCSO.  Among the material released was a recommendation by the Assistant Judge Advocate General of the Army that the applicant be involuntarily removed from the Army for misconduct stemming from his lawsuit against the sheriff.  The document was stamped "CONFIDENTIAL."

6.  As a result of the 20 September 2005 court order sanctioning of the applicant, the OTJAG Standards of Conduct Office (SOCO) directed a professional responsibility investigation into the applicant's conduct.  Based on that investigation, the Assistant Judge Advocate General of the Army issued the applicant the subject GOMOR, dated 28 March 2007.  The GOMOR, which was subsequently redacted on or about 10 March 2008, stated:

1.  On 20 September 2005, the Magistrate Judge in a U.S. District Court in Florida found that you filed a false affidavit and acted in bad faith when you attempted to coerce $500,000 plus attorneys fees from the sheriff against whom you had filed a civil lawsuit.  The Army Standards of Conduct Office directed an inquiry into these allegations.  I have carefully considered the information contained in the inquiry, the findings and recommendations of the inquiry officer and USARC Staff Judge Advocate, and all of the matters 
you submitted during the inquiry and in rebuttal to these findings and recommendations before finding that you violated the Army Rules of Professional Conduct for Lawyers when you filed a false affidavit, improperly attempted to coerce from the sheriff $500,000 and attorneys fees.

2.  You are reprimanded.  Your conduct is reprehensible and raises substantial question as to your honesty, trustworthiness, and fitness 
as a lawyer.  As a Judge Advocate and officer of the court, your word must be unquestioned and you must always do what is right, legally and morally.  By filing a false affidavit, you irreparably compromised your integrity.  By attempting to extort money during negotiations in a personal lawsuit, you demonstrated that you lack the moral and ethical courage to do what is right and just in all circumstances.  Consequently, I no longer have trust and confidence in your ability to serve as a Judge Advocate.

3.  You are further reprimanded for the attorney-client relationship you established with MAJ C---- H----, a subordinate officer.  While serving as his team leader and rater responsible for mentoring and training him as an officer and attorney, you hired MAJ H---- to represent you in a lawsuit.  By establishing this relationship, you compromised the integrity of your supervisory authority over him and created the appearance that you improperly used your rank and position as his team leader for personal gain.  Your lack of judgment in establishing this attorney-client relationship has resulted in assertions that he is not responsible for his improper actions in the civil suit because he was acting at your direction.  This characterization of your military relationship to him reflects adversely on the reputation of the Judge Advocate General's Corp [sic].

4.  I am considering filing this memorandum in your Official Military Personnel File.  You have ten (10) calendar days from receipt of this memorandum to provide any additional input you would like me to consider before I take final action.  Submit any additional comments to me through the Chief, Army Standards of Conduct Office.

The GOMOR did not contain a statement indicating it was imposed as an administrative measure and not as a punishment under Article 15, Uniform Code of Military Justice (UCMJ).

7.  In March 2007, the applicant was provided 10 days to review the reprimand and provide input to the Assistant Judge Advocate General prior to final filing action being taken.  Between March 2007 and March 2008 - almost 1 year - the applicant submitted input consisting of 6 rebuttal documents which caused the issuing authority to make minor redactions to paragraphs 1 and 2.  The redacted GOMOR was then filed in the applicant's OMPF.

8.  In a memorandum, dated 12 March 2008, OTJAG notified the applicant of several actions taken by the Assistant Judge Advocate General of the Army, including:  the filing of the GOMOR in the applicant's OMPF, notifying the applicant's state bars [Pennsylvania, New Jersey, District of Columbia], reaffirming the applicant's suspension from Judge Advocate duties, and recommending to the applicant's command that he be involuntarily separated.  The transmittal letters to the applicant's state bars were all dated "January 29, 2007" [emphasis added].  It is not known when they were postmarked.

9.  In an undated memorandum to the U.S. Army Human Resources Command, St. Louis, MO (HRC-St Louis), the issuing authority ordered the redacted GOMOR, the undated memorandum, and the applicant's 6 rebuttal documents filed in his OMPF.  A review of the applicant's records contained in the Army's interactive Personnel Electronic Records Management System (iPERMS) shows that only the GOMOR and the undated memorandum are filed in his OMPF.

10.  The applicant filed a complaint against the Assistant Judge Advocate General with the Department of Defense Inspector General (DODIG).  The complaint involved administrative procedures related to OTJAG's notification of his state bars.  The DODIG found the Deputy [sic] Judge Advocate General did not provide the applicant with the required notice of his intent to notify the applicant's state bars.  Army Regulation 27-1 requires that before reporting an attorney's conduct to his or her licensing authority, the subject attorney will be advised of the contemplated action and given not more than 10 days to show cause why such action should not be taken.

11.  Army Regulation 27-26 (Rules of Professional Conduct for Lawyers) provides comprehensive rules governing the ethical conduct of Army military and civilian lawyers.

12.  Army Regulation 27-1 (Judge Advocate Legal Services (JALS)) provides general information about the JALS and the Judge Advocate General's Corps (JAGC); prescribes the composition, mission, and functions of the JALS; details responsibilities and explains policies, objectives, and procedures for the development and maintenance of Reserve Component (RC) JAGC officers; details responsibilities for the supervision, training, employment, and administration of Judge Advocate General Service Organizations (JAGSOs), including Table of Organization and Equipment (TOE) changes; updates procedures for acquiring and maintaining Army law library materials; and defines the professional standards and procedures for processing alleged violations of professional standards.

13.  Army Regulation 27-1, paragraph 7-2, establishes procedures for processing alleged or suspected violations of the Army Rules of Professional Conduct for Lawyers or other applicable ethical standards by Judge Advocates, civilian attorneys subject to this regulation, or other attorneys who are subject to the disciplinary authority of The Judge Advocate General of the Army.  It provides:
	a.  The Judge Advocate General is responsible for making reasonable efforts to ensure that all JALS attorneys conform to the Army Rules of Professional Conduct for Lawyers, the 1972 American Bar Association (ABA) Code of Judicial Conduct, and other applicable ethical standards.

	b.  Credible alleged or suspected violations of the Army Rules of Professional Conduct for Lawyers, the 1972 ABA Code of Judicial Conduct, or other applicable ethical standards that raise a substantial question as to a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects will be informally investigated by means of a Preliminary Screening Inquiry (PSI).  If the PSI shows that a violation of ethical standards has occurred, the PSI report will be forwarded to The Judge Advocate General or the Assistant Judge Advocate General for further action.

	c.  The Judge Advocate General or the Assistant Judge Advocate General will refer the PSI file to the subject Judge Advocate for comment.  The subject will be given a reasonable time to provide comments.  The comments will be considered by The Judge Advocate General or the Assistant Judge Advocate General in arriving at a decision.

	d.  If a substantial violation of the Army Rules of Professional Conduct for Lawyers, the 1972 ABA Code of Judicial Conduct, and other applicable ethical standards is clearly shown, The Judge Advocate General or the Assistant Judge Advocate General will take appropriate action on that violation, and possibly refer the matter to a state or local bar.

14.  Army Regulation 27-1, paragraph 7-8(a), provides that before reporting an attorney's conduct to his or her licensing authority, or taking any action which does not, under other regulations, provide for notice and the opportunity to comment, OTJAG will advise the subject attorney of the contemplated action and give him or her not more than 10 days to show cause why OTJAG should not take such action.

15.  Army Regulation 340-21 (The Army Privacy Program) sets forth policies and procedures that govern personal information kept by the Department of the Army in systems of records.  Paragraph 3-1 states the Army is prohibited from disclosing a record from a system of records without obtaining the prior written consent of the data subject, except when disclosure is:

* Made to officers and employees of DOD who have a need for the record in the performance of their duties
* Required under the Freedom of Information Act
* Permitted by a routine use that has been published in the Federal Register
* Made to the Bureau of the Census for planning or carrying out a census or survey, or to a related activity pursuant to Title 13 of the U.S. Code
* Made to a recipient who has provided the Army with advance written assurance that the record will be
o Used solely as a statistical research or reporting record
o Transferred in a form that is not individually identifiable
* Made to the National Archives of the United States as a record that has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or for determination of such value by the Administrator of the General Services Administration (GSA), or designee
* Made to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if
o The activity is authorized by law
o The head of the agency or instrumentality has made a written request to the Army element that maintains the record.  The request must specify the particular portion desired and the law enforcement activity for which the record is sought
* Made to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual.  Upon such disclosure notification will be transmitted to the last known address of such individual
* Made to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress, or subcommittee of any such joint committee
* Made to the Comptroller General, or authorized representatives, in the course of the performance of the duties of the General Accounting Office (GAO).
* Pursuant to the order signed by a judge of a court of competent jurisdiction
* Made to a consumer reporting agency under section 3(d) of the Federal Claims Collection Act of 1966 (originally codified at Title 31, U.S. Code, section 952(d); recodified at Title 31, U.S. Code, section 3711(f) ).  The name, address, social security number (SSN), and other information identifying the individual; amount, status, and history of the claim; and the agency or program under which the case arose may be disclosed in this instance

16.  Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, to include the well-being of the force, military discipline, and conduct.  Paragraph 4-14 (Relationships between Soldiers of different rank), in subparagraph c, generally prohibits business relationships between officers and enlisted Soldiers with the exception of Army National Guard and USAR relationships that exist due to civilian occupation or employment.  However, subparagraph b prohibits any relationships between Soldiers of different rank if they compromise, or appear to compromise, the integrity of supervisory authority or the chain of command.

17.  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.  The regulation provides 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.  The regulation further provides:

	a.  in paragraph 3-4b(1)(b), 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 [emphasis added] be attached as enclosures to the basic letter.

	b.  in paragraph 3-4b(2), GOMORs filed in a Soldier's OMPF contain a statement indicating it has been imposed as an administrative measure and not as a punishment under Article 15, UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the subject GOMOR and all related references thereto from his OMPF.  He argues the GOMOR is in error, is untrue and unjust in whole or in part, and illegal.  He specifically argues:

	a.  the GOMOR was issued for alleged misconduct in a civilian court proceeding having nothing to do with the Army;

	b.  between 28 March 2007 and 10 March 2008, he submitted rebuttals and points of evidence refuting the allegations against him, including findings from the bars of the District of Columbia and New Jersey absolving him of the alleged wrongdoing on which the GOMOR is based;
	c.  the allegation he rendered a "false affidavit" was completely refuted, as was the allegation he attempted to "coerce" a settlement from a defendant in a civilian court case;

	d.  OTJAG of the Army unlawfully released the GOMOR and related documents to persons outside the Army in violation of pertinent Army regulations and privacy laws; and

	e.  the GOMOR was wrongfully filed in his OMPF in violation of pertinent Army regulations and; therefore, is defective and must be removed.

2.  The subject GOMOR is not untrue, unjust in whole or in part, or illegal.

	a.  A magistrate judge sanctioned the applicant for "Bad Faith and Extortionate Conduct."  The applicant has submitted no evidence to show the sanction order was reversed.

	b.  The GOMOR is based on an OTJAG investigation which evolved from notification of the sanction order.  From the results of the investigation, the Assistant Judge Advocate General determined the applicant filed a false affidavit and attempted to coerce money from the sheriff.

3.  The bars of the District of Columbia and New Jersey did not absolve the applicant of misconduct; they simply dismissed the sheriff's disciplinary complaint because "clear and convincing evidence" of misconduct was not shown.

4.  The OTJAG had a regulatory authority to notify the applicant's state bars of his misconduct; release of the GOMOR and related documents to persons or 
agencies outside the Army was not unlawful.  Further, the applicant has not shown that OTJAG told "…the entire world that [he] had committed 'misconduct.'"  To the contrary, it appears the documents were made public following their release by state bars to the applicant and the sheriff.  OTJAG bears no responsibility for those actions.  Even if OTJAG failed to provide the applicant the 10-day notice and opportunity to respond to the Bar notifications, as set forth in 
Army Regulation 27-1, it had no bearing on the GOMOR or its validity.  The applicant's complaint in this regard goes to the use of the GOMOR, not its validity and, therefore, provides no basis for the removal of the GOMOR from the OMPF.

5.  It is clear the GOMOR did not comply with applicable Army regulations in that it does not contain the statement mandated by Army Regulation 600-37, paragraph 3-4b(2), indicating the GOMOR was imposed as an administrative measure vice as punishment under Article 15, UCMJ.  Furthermore, it is clear the filing order of the Assistant Judge Advocate General was not followed in that all supporting documents were not filed in the applicant's OMPF as directed.  These minor omissions do not rise to the level of fatal flaws and, thus, do not provide justification for removal of the GOMOR from the applicant's OMPF.  However, the errors should be corrected.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  __X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  adding to the subject GOMOR the statement, "[T]his reprimand is imposed as an administrative measure and not as a punishment under Article 15, Uniform Code of Military Justice (UCMJ)," or words to that effect; and

	b.  adding to his OMPF the enclosures to the subject GOMOR and all six rebuttal submissions from the individual concerned listed in the undated memorandum from OTJAG to HRC-St Louis (OMPF Filing Order on Reprimand).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of GOMOR and all related references thereto.



      ___________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)                                         AR20090014740



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ABCMR Record of Proceedings (cont)                                         AR20090014740



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