IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100013738 


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:

The applicant defers his request to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the removal of a general officer memorandum of reprimand (GOMOR), dated 25 January 2008, from the applicant's official military personnel file (OMPF) and military personnel records jacket (MPRJ).

2.  Counsel states the GOMOR was untrue and unjust.  It was based on a deficient investigation with no concrete proof that the applicant forged any documents or committed fraud.  Action on the investigation was unjustifiably delayed for almost 1 year to the detriment of the applicant and the applicant was not given adequate time to respond to the investigation with exculpatory evidence.  Counsel acknowledges the fact that the applicant was granted two extensions of the deadline to submit a rebuttal but believes the denial of a third extension was unfair because the applicant needed more time to compile banking data.  Counsel concludes that the investigating officer (IO) was not qualified to investigate this matter because it takes a person with an understanding of finance to adequately investigate charges of financial fraud.

3.  Counsel submits the following documents:

* a copy of the Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings
* a copy of the GOMOR
* a copy of the Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation findings and recommendations
* letters from the applicant to his financial institutions

CONSIDERATION OF EVIDENCE:

1.  The applicant is a U.S. Army Reserve (USAR) sergeant first class (SFC)/E-7 who enlisted in the USAR on 9 May 1986 and has served continuously in the USAR through multiple extensions or reenlistments in military occupational specialty 44C (Finance Specialist).  He was assigned to the 395th Finance Battalion.

2.  On 1 March 2007, an IO was appointed by the Commanding General (CG), 108th Division (Institutional Training), for serious allegations that the applicant and another junior Soldier with whom he shared residence had been involved in fraud and the submission of duplicate or fraudulent travel vouchers.  The IO, a disinterested officer in the rank of major, was senior to the applicant and not assigned to the same unit.  He was identified by the appointing authority as the appropriate individual to conduct an investigation.

3.  The IO investigated all available travel vouchers and supporting documentation from May 2004 through September 2006 submitted under the applicant's social security number, totaling 23 separate claims belonging to the applicant.  He also reviewed travel vouchers submitted by the junior Soldier, as well as vehicle dispatch records for Fiscal Years 2005 and 2006, and thoroughly researched the Joint Federal Travel Regulation.  The IO made the following findings and recommendations:

	a.  He found the applicant, as a finance noncommissioned officer (NCO) entrusted with the safeguarding of the financial resources of his organization and the U.S. Government, had compromised his integrity and character through his actions in the face of clear evidence that he committed forgery and financial fraud to gain $1,162.22.

	b.  He recommended that law enforcement authorities be notified of the evidence discovered during this investigation and that separation action be initiated against the applicant.  At a minimum, he recommended a GOMOR and collection of the monies that had been paid under fraudulent circumstances.

4.  On 25 January 2008, the applicant was reprimanded by the 108th Division CG.  The GOMOR stated that an investigation was completed pursuant to Army Regulation 15-6 which established that the applicant had committed forgery and fraud on travel vouchers resulting in receipt of unauthorized pay.  It also stated that as an NCO and leader, the applicant was expected to conduct himself with honesty and integrity in all matters and set an example for the Soldiers he leads. 
Consequently, he had fallen short of the high standards for himself, the NCO Corps, the command, and all the Soldiers who work hard to earn and keep the respect of both subordinates and peers.

5.  On 29 January 2008, the applicant was presented with the GOMOR, but he refused to acknowledge receipt or sign it.

6.  Counsel submitted copies of two letters, dated 21 February 2008, from the applicant to his financial institutions, wherein he requested copies of his account statements.

7.  On 13 April 2008, the CG stated that he had fully considered the facts concerning this matter.  In his memorandum, the CG reiterated that on 25 January 2008 he issued the applicant a reprimand based on an Army Regulation 15-6 investigation that established forgery and fraud on travel vouchers that resulted in the receipt of unauthorized pay.  The applicant was given the opportunity to submit matters in extenuation, mitigation, or rebuttal.  He received an initial extension until 22 February 2008 to respond after acquiring an attorney to assist him in this matter.  An additional extension was requested and granted until 12 March 2008.  Upon request, a final extension was granted until 12 April 2008.  The response by email on 12 April 2008 at 1749 hours requested an additional delay.  Having previously advised the applicant that no further extensions would be granted, the request was disapproved.  This Soldier had committed serious misconduct that is prejudicial to the good order and discipline in the Armed Forces.  As such, the CG directed the GOMOR, dated 25 January 2008, along with the enclosures, be filed permanently in both the OMPF and MPRJ.

8.  The GOMOR is currently filed in the performance portion of the applicant's OMPF.

9.  The applicant's records further show in or around April 2008 he was reassigned to the 374th Financial Management Company, Wilmington, DE.  He has received two NCO Evaluation Reports for the periods 14 April 2008 through 13 April 2009 and 14 May 2009 through 28 October 2009 wherein he was placed among the best and rated as having superior potential.  Additionally, since the GOMOR, he has received his fourth award of the Army Good Conduct Medal.



10.  On 22 August 2008, the applicant petitioned the DASEB for removal of the GOMOR from his OMPF.  However, on 24 November 2008 he was notified by memorandum that after careful consideration, the DASEB voted to deny the removal of the GOMOR from his records.

11.  Army Regulation 600-37 (Unfavorable Information) provides 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 a filing determination is made.

12.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is 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, 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 of Army Regulation 600-37.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 states that administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the OMPF.  They are also filed in the MPRJ.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant and a junior Soldier with whom he shared a residence submitted duplicate vouchers for which only one of them provided funds.  Accordingly, he received a GOMOR.  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.  He requested and was authorized several extensions to submit a rebuttal, but he still failed to do so.  Subsequently, the GOMOR was referred for filing in his OMPF.


2.  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.  The evidence considered by the IO and the GOMOR imposing authority sufficiently established by a preponderance of the evidence that the applicant engaged in forgery and travel voucher fraud.

4.  With respect to counsel's arguments:

	a.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  The applicant knew as early as March 2007 that he was being investigated for potential fraud.  He had an ample opportunity to submit a rebuttal in his defense, but he failed to do so.

	b.  It is unclear how counsel established that the IO was not qualified to conduct an investigation as such action is decided by the appointing authority.  In this case, the IO was senior to the applicant, a disinterested party, and he was assigned to another unit.  He thoroughly reviewed the JFTR and examined multiple vouchers.  His methodology, findings, and recommendations appear to be intact and on par with the evidence presented.

	c.  The lapse of time between the submission of the vouchers, the actual investigation, and the GOMOR is irrelevant.  As a senior NCO and leader entrusted with the financial resources of his unit and the Army, he knew or should have known financial records are audited and the submission of duplicate vouchers would raise questions regarding his integrity.  His conduct was inexcusable and his actions brought discredit to himself, the NCO Corps, and the Army.  His actions displayed a lack of discipline and raised questions about his ability to effectively perform as a leader.

	d.  The failure to obtain financial documents does not provide a basis to set aside the GOMOR because reasonable delays were granted.  Additionally, the records, once received after the GOMOR was filed, proved not to be dispositive in the issue of guilt.  Hence, there was no harm in denying further delays.

3.  In view of the foregoing evidence, there is insufficient evidence to grant the applicant the requested relief.






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)                                         AR20100013738



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ABCMR Record of Proceedings (cont)                                         AR20100013738



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