IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20090019630 


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 removal of a General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF); reconsideration for promotion to major by a Special Selection Board (SSB); and to receive all back pay and allowances due as a result of backdated promotion.

2.  The applicant states Inspector General (IG) findings were improperly used in his case.  He further claims there were inadequate investigative practices and procedures applied and that he was denied adequate due process protections.  He further claims malicious wrongdoing on the part of a subordinate and leaders in clear contradiction to available evidence in his case.  He further requests to be reinstated on active duty in the Active Guard Reserve (AGR) program if he is removed prior to receiving the results of this Board.

3.  The applicant provides a self-authored appeal letter and the 17 enclosures identified in the letter and a Congressional inquiry.

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty from 22 June 2003 through 10 November 2009, at which time he was honorably released from active duty and transferred to U.S. Army Reserve (USAR) Control Group (Reinforcement), St. Louis, MO.


2.  On 20 November 2009, the applicant transferred from the USAR Control Group to a Troop Program Unit (TPU) (653rd Combat Support Group, Mesa, AZ) where he is currently serving in the rank of major.

3.  On 22 April 2006, while serving as the company commander of the 43rd Military Police (MP) Brigade, Iraq, the applicant was suspended from command based on his failing to account for his Soldiers while in a combat zone.

4.  On 24 April 2006, an investigating officer (IO) was appointed to conduct a commander’s inquiry (CI) investigation into the applicant’s failure to account for Soldiers in a combat zone.

5.  On 1 May 2006, the CI investigation found the applicant made no intentional error in reporting the status of the Soldier in question.

6.  On 3 May 2006, the Staff Judge Advocate (SJA) legal review of the CI investigation determined the findings and recommendations were supported by a preponderance of the evidence and no material errors were present.

7.  The applicant’s battalion commander rejected the findings and recommendations of the IO and indicated she would continue to hold the applicant accountable.

8.  On 6 May 2006, the IG of the 43rd MP Brigade, Iraq, completed an investigation on the applicant and substantiated the following allegations against him: 

	a.  Improperly had a prohibited relationship with a Soldier of a different rank in violation of Army Regulation 600-20 (Army Command Policy);

	b.  Improperly committed sexual harassment in violation of Army Regulation 600-20; and

	c.  Improperly failed to fulfill his leadership responsibilities in violation of Army Regulation 600-100 (Army Leadership). 

9.  On 17 July 2006, the commander of the 43rd MP Brigade, Iraq, a brigadier general (BG), issued the applicant a GOMOR reprimanding him for violating Army Regulation 600-20 and failing to fulfill his leadership responsibilities as prescribed in Army Regulation 600-100.  The BG cited the IG investigation as the source of the substantiated allegations and provided the applicant a copy of the 


investigation results and statements.  He informed the applicant he was considering whether to file the GOMOR in his OMPF and prior to making a final decision, he would consider all matters presented.

10.  On 25 June (sic) 2006, the applicant submitted a rebuttal memorandum to the GOMOR issuing authority requesting the GOMOR not be filed in his OMPF.  He stated the IG investigation was not supported by actual knowledge or evidence and was based on hearsay, conjecture, and repeated third-hand rumor mill information memorialized in statements which only verify the inconclusive nature of the statements.

11.  On 26 July 2006, the GOMOR imposing authority directed the GOMOR be filed in the applicant's OMPF.  On this same date, the BG also released the applicant from the theater, effective 30 July 2006.

12.  On 25 November 2008, the Officer Evaluation Report (OER) the applicant received for the period 22 September 2005 through 22 April 2006 was successfully appealed and removed from his OMPF.

13.  On 31 March 2009, the DASEB denied the applicant's request to remove the GOMOR from his OMPF.  The DASEB found that while the documentation and evidence presented appeared to support the applicant's contention that the IG investigation results were improperly used to support the GOMOR adverse action, the applicant still did not meet the threshold of proof necessary to overcome the presumption of regularity attached to a GOMOR accepted for filing by Headquarters, Department of the Army (HQDA) and failed to provide clear and convincing evidence that the GOMOR was untrue or unjust.

14.  On 3 June 2010, the applicant was promoted to major upon reaching maximum time and grade. 

15.  Army Regulation 20-1 (Inspector General Activities and Procedures) prescribes policy and mandated procedures concerning the mission and duties of The Inspector General (TIG) of the Army.  Chapter 3 contains guidance on IG records and paragraph 3-3 contains guidance on the use of IG records for adverse actions.  It states IG records will not be used as the basis for adverse action except when specifically authorized by the Secretary of the Army, the Under Secretary of the Army (SA), the Chief of Staff Army (CSA), Vice Chief of Staff Army (VCSA) or TIG.  It further states in requests to use the results of an IG investigation for adverse action, the request must state why a follow-on 


investigation would be unduly burdensome, disruptive, or futile.  Follow-on investigations preclude the necessity of using IG records for adverse action and thereby safeguard the image and integrity of the IG system.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the findings of an IG investigation were improperly used to issue him the GOMOR in question has been carefully considered and found to have merit.  By regulation, IG investigation findings may not be used as a basis for adverse actions unless approved by proper authority (SA, CSA, VCSA, or TIG).

2.  The evidence of record fails to show the GOMOR issuing authority obtained the necessary approval prior to issuing the GOMOR in question and as a result, he improperly used the results of the IG investigation as a basis for this adverse action.  Therefore, it would be appropriate to remove the GOMOR from the applicant’s OMPF.

3.  Further, the DASEB, in denying the applicant's request for removal of the GOMOR, improperly invoked the presumption of regularity by assuming the issuing officer had obtained the required approval to use the IG report.  The limitation on using IG reports exists to maintain the integrity and independence of the IG system so approval to use a report for an adverse action is, by necessity, a rare occurrence which does not apply in this case.  As a result, it would also be appropriate to remove the DASEB denial and all related documents from his OMPF.

4.  In addition, based on the prior removal of the OER the applicant received for the period he served in Iraq and on this action to remove the GOMOR and related DASEB documentation, it would also be appropriate to place the applicant’s record before an SSB for promotion reconsideration to major under the criteria of the promotion selection boards that viewed his record with the now removed OER for the period 22 September 2005 through 22 April 2006 and the GOMOR in question.

5.  Further, if the applicant is selected for promotion to major by an SSB under earlier criteria, his promotion effective date and date of rank to major of 3 June 2010 should be adjusted accordingly and he should be provided all back pay and allowances due as a result.


6.  The applicant continued to serve on active duty through 2009 and there is no evidence indicating he was improperly removed from the AGR program based on the issue of the removed OER or the GOMOR in question.  Therefore, there is an insufficient evidentiary basis to support an extension or reinstatement on active duty or continuation of his AGR tour as a result of this action.

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.  removing the 17 July 2006 GOMOR and all related documents from his OMPF:

	b.  removing the DASEB denial and all related documents from his OMPF;

	c.  filing this Record of Proceedings in the restricted section of his OMPF;

	d.  placing his corrected record before SSB's for consideration for promotion to major under the criteria used by the promotion selection boards that viewed his record with the removed OER for the period 22 September 2005 through
22 April 2006 and the GOMOR in question;

	e.  if selected for promotion under earlier criteria by the SSB, adjust his current 3 June 2010 promotion effective date and date of rank to major accordingly and providing him all back pay and allowances due as a result; and

   f.  if not selected by an SSB under earlier criteria he should be so notified.


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 continuation or reinstatement on active duty in the AGR program.



      ___________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)                                         AR20090019630



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ABCMR Record of Proceedings (cont)                                         AR20090019630



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