IN THE CASE OF:	 

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090016704 


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 reinstatement of his Special Forces (SF) Tab and of his Career Management Field (CMF) branch designation of 18 (SF); and removal of a General Officer Memorandum of Reprimand (GOMOR), dated 22 January 2007, from his Official Military Personnel File (OMPF).  

2.  The applicant states he was issued a GOMOR that resulted in the removal of his SF Tab and CMF 18 designation as punishment for the misconduct of his team sergeant and another noncommissioned officer (NCO) on his team.  These team members provided false documents and lied to cover their illegal acts while he was their team leader.  As a result, the commander and commandant abused their discretionary authority and failed to follow regulatory guidance in issuing the GOMOR and removing him from CMF 18 and revoking his SF Tab.   

3.  The applicant provides a 14-page self-authored statement and 8 exhibits identified in the Table of Contents provided with his application in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he served in an enlisted status in the Regular Army (RA) and the Army National Guard (ARNG) from 8 October 1991 through 
2 November 2001, and he was appointed a second lieutenant (2LT) in the ARNG on 3 November 2001.  He was promoted to first lieutenant (1LT) on 6 November 2002 and to captain on 19 May 2005.  

2.  On 24 September 2005, while serving in the Florida ARNG, the applicant was ordered to active duty in support of Operation Enduring Freedom for a period of 365 days.  

3.  A DA Form 1574 (Report of Investigation), dated 13 August 2006, shows a lieutenant colonel was appointed an investigating officer (IO) to investigate potential operational fund (OPFUND) and weapons violations that occurred at "ODA 2046."  A finance officer, a first lieutenant, was appointed to assist the IO as a finance expert.  The DA Form 1574 indicates the IO obtained statements and interviewed members of the team involved in the incident as well as other Soldiers who could have had relevant knowledge of misconduct.  The list of enclosures to the report confirms more than 30 sworn statements were obtained. Based on the investigation, the IO made the following findings pertaining to the applicant and his team sergeant:  

	a.  They were derelict in the performance of their duties as team leader and team sergeant;

	b.  Their unprofessional behavior caused a split in the cohesiveness of the team, which in turn created a climate of distrust and secrecy.  This command climate led to the misuse of OPFUNDs and the misappropriation of government arms and munitions, as well as the attempted exportation of contraband to the United States;

	c.  They exercised no oversight over the Pay Agent (PA) and field ordering officer (FOO) which led to a total breakdown of OPFUND accountability;

	d.  They favored one team member over the other instead of being neutral and this favoritism furthered a division of the team;

	e.  The applicant used poor judgment in attempting to insert a sergeant first class as the team sergeant to replace the team sergeant and in appointing an inexperienced and junior NCO as PA;

	f.  The team sergeant used poor judgment in having a sergeant first class appointed as the FOO; 

	g.  The team sergeant was derelict in his duties by waiting several months before reporting the irregularities in the OPFUND; and 

	h.  Dereliction of duty was the direct cause of the loss of government property and funds.  

4.  The DA Form 1574 shows the IO finally recommended that:

	a.  Action be taken to revoke the applicant's SF Tab; 

	b.  A GOMOR be initiated and filed in the applicant's OMPF; and 

	c.  The applicant be issued a relief for cause Officer Evaluation Report (OER). 

5.  On 22 January 2007, the commander of the United States Army Special Forces Command (USASFC), Fort Bragg, North Carolina, a major general, issued the applicant a GOMOR based on the findings of the IO which found the applicant had been derelict in the performance of his duties as the Team Leader of "ODA 2046" deployed in Afghanistan.  The GOMOR further indicated the applicant failed to exercise diligent oversight of the PA and FOO on his team which led to a breakdown of operations fund accountability and the loss of government property.  The GOMOR issuing officer informed the applicant he intended to file the GOMOR in his OMPF; however, he would make his final filing decision only after he received and considered any response the applicant elected to make.  

6.  On 20 February 2007, the applicant submitted a 14-page response.  He requested that the GOMOR not be imposed and indicated the IO was wrong in finding he was derelict in his duties.  He outlined why he believed the IO was incompetent and that the IO was derelict in the performance of his duties in that he did not thoroughly investigate the matters at issue.  He stated the IO completed his investigation within 48 hours, took the statements of certain witnesses at face value, and failed to further inquire into plainly suspect responses.  He claimed the IO arrived at generalized conclusions about his command without substantive proof or explanation.  He stated the IO did not cite witness statements to support his findings and there was no evidence the investigation received a legal review.  In sum, he stated the IO's findings were improper because they were based upon unsubstantiated allegations and were, therefore, not supported by the available evidence.  He further stated the IO's recommendations were not in accordance with those available in the applicable regulation.  An attorney representing the applicant also submitted a letter in response to the GOMOR outlining what he perceived to be shortcomings in the IO's investigation.  

7.  On 21 February 2007, the applicant's battalion commander recommended the GOMOR be filed in the OMPF and commented that the serious lapse in leadership by the applicant warranted permanent filing of the GOMOR.  


8.  On 22 February 2007, the unit sergeant major and unit commander recommended the GOMOR be filed in the applicant's OMPF and indicated the applicant's actions allowed and encouraged unethical actions by his team and indicated the applicant was an ineffective leader and actively fostered a command climate that allowed the abuse of funds.  The commander further stated he would not want the applicant in his unit or in command of SF Soldiers in the future. 

9.  On 6 March 2007, the 7th SF Group Judge Advocate completed a review of the GOMOR rebuttal materials submitted by the applicant through his attorney and their assertion the USASFC commanding general did not have the authority to issue or to make a filing determination on the GOMOR.  He stated this assertion was patently false and the governing regulation allowed the losing command to process the action to completion when the intent to impose a reprimand had been announced but not yet completed.  

10.  On 19 April 2007, the 7th SF Group command sergeant major and commander also recommended the GOMOR be filed in the applicant's OMPF.  They commented that the applicant demonstrated poor leadership and personal integrity.  

11.  On 10 May 2007, the general officer imposing the GOMOR, after reviewing all evidence and recommendations, directed that the GOMOR be filed in the applicant's OMPF. 

12.  On 14 May 2007, the revocation of the applicant's SF Tab was directed in United States Army John F. Kennedy Special Warfare Center and School, 
Fort Bragg, Permanent Orders 134-1.  

13.  On 15 May 2009, the Commanding General, United States Army Special Operations Command, informed the applicant he had reviewed the SF Tab revocation action, the supporting documents, and the matters submitted in the applicant's behalf, and found the revocation action in the applicant's case to be appropriate.  He indicated the applicant's actions were inconsistent with the professionalism and standards of conduct expected of an SF Solider.  He indicated the applicant's failure of leadership that led to the GOMOR in his OMPF demonstrated a disregard of Army and command policies and that the applicant had compromised his ability to lead Soldiers within the SF community.  As a result, the applicant's request for reinstatement of his SF Tab was denied. 


14.  The applicant asserts in his application that he has exhausted administrative remedies but the record contains no indication he has petitioned through the State Adjutant General to the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR from his OMPF or for its transfer to the restricted (R) portion of the OMPF based on it having served its intended purpose.  There is also no indication he has applied to the United States Army Human Resources Command (USAHRC) for reinstatement in CMF 18 or for reinstatement of his SF TAB.  

15.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 1-31 contains guidance on revocation of badges including the Ranger Tab, Special Forces Tab, and Sapper Tab.  It states commanders authorized to award combat and special skill badges are authorized to revoke such awards.  An award, once revoked, will not be reinstated except by USAHRC, ATTN: AHRC-PDO-PA, Alexandria, VA 22332-0471, when fully justified. 

16.  Army Regulation 600-37 (Unfavorable Information) sets forth the policies and procedures to authorized placement of unfavorable information about Army members in individual official files.  Paragraph 3-4 contains guidance on filing non-punitive administrative letters of reprimand, admonition, or censure in official personnel files.  It states a letter regardless of issuing authority may be filed in the OMPF only upon the order of a general officer.  A letter to be included in the OMPF will be referred to the recipient for comment and statements and other evidence furnished by the recipient will be reviewed and considered by the officer authorized to direct the filing in the OMPF prior to the final filing determination being made.  

17.  Army Regulation 600-37, chapter 7 contains guidance on appeals and petitions and states appeals and petitions for removal of unfavorable information are to be directed to the DASEB.  It further stipulates once an official document has been properly filed in the OMPF, it is presumed to be 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.  Appeals submitted by Army National Guard officers not on active duty will be processed through the proper State adjutant general and the Chief, National Guard Bureau to the Deputy Chief of Staff, Personnel (DCS, G-1), ATTN: DAPE-MPC-E for action. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the GOMOR in question should be removed from his OMPF, he should be reinstated in CMF 18, and his SF Tab should be reinstated as a result of the IO's findings and conclusions being untrue has been carefully considered.  However, the evidence is not sufficient to support these claims. 

2.  By regulation, once an official document has been properly filed in the OMPF, it is presumed to be 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 available evidence confirms the GOMOR proceedings were accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the process.  

4.  The imposing general officer properly referred the GOMOR to the applicant and did not make his final OMPF filing determination until he reviewed the appeal/rebuttal and all supporting material submitted by the applicant.  As a result, there is no evidence the filing determination was arbitrary or capricious or anything other than the objective decision of the imposing general officer.  

5.  Absent evidence of error or injustice related to the filing process, or clear and convincing independent evidence showing the GOMOR was based on information that was untrue or unjust there is an insufficient evidentiary basis to support removal of the GOMOR from the applicant's OMPF.  

6.  The available evidence shows the applicant's removal from CMF 18 and revocation of his SF Tab was accomplished based on the findings and recommendations of a properly-conducted Army Regulation 15-6 investigation.  

7.  As the responsible officer team leader, the applicant was ultimately responsible for the conduct of his team members and for proper accomplishment of the mission.  As a result, it appears the decision to remove him from CMF 18 and to revoke his SF Tab were sufficiently supported by the investigative findings that he was derelict in the performance of his duties and failed to provide diligent oversight of his team members in the conduct of their duties.  


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)                                         AR20090016704



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016704



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1